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THE  BRIEF 

WITH 

SELEOTIOIS^S   FOB   BEIEFIKG 


BY 


CARROLL  LEWIS   MAXCY,  M.A. 

Morris  Professor  of  Rhetoric  in  Williams  College 

Author  of 

"  The  Rhetorical  Principles  of  Narration  ^^ 

and  "  Representative  Narratives  " 


BOSTON  NEW   YORK   CHICAGO 

HOUGHTON   MIFFLIN  COMPANY 


COPYRIGHT,   I916,  BY  CARROLL  LEWIS  MAXCY 


ALL  RIGHTS  R£S£RV£D 


Wl)t  IBiibtveitK  S^vtM 

CAMBRIDGE  .  MASSACHUSETTS 
U  .   S  .   A 


TO 
H.  L.   E. 

PUPIL  AND  FRIEND 


PREFACE 

Aside  from  its  primary  purpose,  as  set  forth  in  the  def- 
inition of  the  term  itself,  the  Argumentative  Brief  serves 
a  distinctly  disciplinary  end.  Experience  in  the  college 
classroom,  extending  over  nearly  a  score  of  years,  has 
demonstrated  to  the  compiler  of  the  following  pages  that 
the  analysis  demanded  by  the  process  of  brief -construction 
develops  in  a  very  high  degree  careful  and  logical  methods 
of  thought  on  the  part  of  the  student.  To  provide  material 
suitable  for  exercise  of  this  character  and  to  set  forth  the 
principles  underlying  the  brief  as  a  form  of  composition, 
this  work  has  been  prepared. 

Acknowledgment  is  hereby  made  to  the  publishers  who 
have  courteously  allowed  the  use  of  copyrighted  material; 
and  also  to  various  authors  of  textbooks  on  argumentation 
—  particularly  to  Professors  Baker  and  Foster,  who  have 
placed  under  deep  obligations  all  subsequent  writers  on 
any  branch  of  this  extensive  subject. 

C.  L.  M. 

Williams  College, 

williamstown,  massachusetts, 

February  10,  1916. 


CONTENTS 

I.  The  Abgumentative  Brief 1 

II.  A  Legal  Brief  —  Charles  E.  Feirick       ....  43 

III.  An  Argumentative  Brief  —  Walter  Mills  Hinkle     .  58 

IV.  Examples  of  Faulty  Briefing 77 

V.  Selections  for  Briefing 86 

1.  Editorials: 

Recent  Police  Activities  —  New  York  Times  .       .     87 

Delaware  clings  to  the  Whipping-Post  —  New  York 
Times 88 

Governor    Van   Wyck    and   the   Canal   Ring  —  New 
York  Times 91 

Not  a  Model  Investigation  —  New  York  Times     .       .     92 

Standards  of  Education  in  the  Women's  Colleges  — 
The  Critic 94 

2.  The  Cooper  Institute  Address  —  Abraham  Lincoln   .     98 

3.  Speech  on  the  Panama  Canal  Tolls  —  Elihu  Root      .  123 

4.  Speech  on  the  Slavery  Question  —  John  C.Calhoun  .  159 

5.  Defense     of    President    Johnson  —  Benjamin    R, 

Curtis 192 

6.  Speech     in     Behalf    of    John     Stockdale  —  Lord 

Erskine 273 

7.  The  Utility  of  Prayer  —  Charles  Reynolds  Brown    .317 


THE  BRIEF 
I 

THE  ARGUMENTATIVE  BRIEF 

Introductory.  The  idea  of  the  'plan,  or  outline,  is  not 
new  to  the  student  of  composition.  Insistence  upon  a 
preliminary  draft  of  the  main  points  as  a  basis  for  subse- 
quent elaboration  into  theme,  essay,  or  oration  has  be- 
come a  recognized  convention  of  classroom  practice. 

The  practical  value  of  this  preliminary  outline  is  hardly 
to  be  overestimated.  The  unsatisfactory  results  follow- 
ing from  failure  to  prepare  a  bird's-eye  view  of  the  field, 
especially  among  public  speakers,  are  familiar  to  all.  A 
voluble  orator,  a  fluent  writer,  frequently  begins  his  work 
with  a  vague  conception  of  the  proposition  that  he  wishes 
to  advance  or  to  defend;  by  a  series  of  thought-associa- 
tions he  wanders  easily  from  point  to  point;  he  uncon- 
sciously diverges  farther  and  farther  from  the  original 
issue;  and  ultimately  he  reaches  a  goal  wholly  foreign  to 
the  theme  with  which  he  originally  set  out.  After  faith- 
fully listening  to  an  oration  or  after  reading  an  article  of 
this  character,  it  is  by  no  means  an  uncommon  experience 
to  ask  ourselves  honestly  what  it  is  all  about,  and,  per- 
haps, to  assume  blame  for  want  of  understanding  or  lack 
of  attention.  The  fault,  however,  may  resolve  itself  into 
failure  on  the  part  of  the  composer  to  organize  his  material 
into  logical  order,  with  the  result  that  unity  and  coherence 
have  gone  by  the  board.  On  the  other  hand,  it  is  generally 
recognized,  especially  among  masters  of  homiletic  compo- 
sition, that  an  effort  based  on  careful  preliminary  analysis 


2  THE  BRIEF 

secures  a  permanence  in  the  mind  of  the  auditor  that 
cannot  be  secured  otherwise.  Many  a  sermon  charac- 
terized by  all  the  graces  of  rhetoric  and  masterly  deliv- 
ery, yet  lacking  in  logical  structure,  produces  seemingly 
deep  effect;  but  it  leaves  little  permanent  impress  an 
hour  after  the  speaker's  voice  has  ceased.  On  the  con- 
trary, a  discourse  that  has  been  deliberately  planned  and 
earnestly  presented  is  likely  to  remain  a  lasting  memory 
and  become  a  vital  possession  to  its  hearers. 

There  is  a  rather  general  prejudice  to  the  effect  that 
the  deliberate  ordering  of  material  in  advance  is  fatal  to 
the  best  interests  of  persuasion  or  conviction.  Speaking 
of  an  enthusiastic  student  in  one  of  our  theological  semina- 
ries who  was  disposed  to  reduce  all  of  his  trial-sermons 
to  analytical  form,  the  instructor  in  homiletics  remarked: 

<*  E is  a  good  man,  but  he  labors  under  the  illusion 

that  he  can  brief  the  love  of  God."  The  reply  was  to  the 
point:  "  But  is  there  any  reason  why  he  should  not  be  able 
to  brief  what  he  has  to  say  about  the  love  of  Godf  A 
surprise  is  in  store  for  one  who  carefully  examines  the  great 
masterpieces  of  forensic  and  pulpit  oratory:  the  extent  to 
which  they  reveal  careful  coordination  and  systematic  or- 
dering of  matter  is  noteworthy.  It  may  be  safely  asserted 
that  the  effectiveness  of  a  writer  or  a  speaker  will  be 
greatly  increased  if  he  has,  in  advance,  a  definite  and 
orderly  conception  of  his  thesis  and  of  the  successive  steps 
whereby  he  proposes  to  establish  it,  —  whether  by  exposi- 
tion or  by  the  processes  of  proof. 

The  Brief  defined.  The  term  brief  is  included  within  the 
term  outline,  but  is  not  synonymous  with  it.  All  briefs 
are,  in  a  sense,  outlines;  but  all  outlines  are  not  briefs. 
The  brief  possesses  certain  distinctive  properties  that  dif- 
ferentiate it  from  the  generic  term  under  which  it  is  in- 
cluded. 

Professor  Henry  S.  Redfield,  in  his  exposition  of  The 


THE  ARGUMENTATIVE  BRIEF  S 

Brief  on  Appeal,  has  defined  the  term  as  it  is  used  in  legal 
practice,  and  his  definition  may  well  serve  here  as  a  basis 
for  exposition.  With  slight  modifications  and  with  the 
omission  of  technicalities,  the  definition  of  the  legal  in- 
strument is  as  follows:  "  A  brief  is  a  document,  prepared 
by  counsel  for  the  use  of  the  court  as  a  basis  for  oral  argu- 
ment of  a  cause;  it  contains  a  statement  of  the  manner  in 
which  the  questions  in  controversy  arose,  of  the  facts  of 
the  case  so  far  as  they  relate  to  these  questions;  it  is  an 
outline  of  the  argument,  consisting  of  the  propositions  of 
law  or  fact  to  be  maintained,  the  reasons  upon  which  they 
are  based,  and  citations  of  authorities  in  their  support."  ^ 

With  slight  modifications  this  technical  definition  of  the 
legal  instrument  may  be  adapted  so  as  to  cover  the  form 
of  the  brief  used  for  general  argumentative  purposes,  or, 
as  it  is  sometimes  termed,  the  forensic  brief:  thus,  A  brief 
is  an  argumentative  outline  constructed  for  the  purpose  of 
acquainting  the  reader  with  the  facts  of  the  case  Under  dis- 
cussion. It  contains  the  exact  issues  involved,  the  succes- 
sive contentions  that  are  to  be  maintained,  and  the  reasons  or 
the  authorities  upon  which  the  contentions  are  based. 

The  Fundamental  Qualities  of  the  Brief.  A  considera- 
tion of  these  definitions  at  once  suggests  several  funda- 
mental qualities  of  this  form  of  outline  composition. 

(1)  To  begin  with,  one  observes  that  in  legal  practice 
the  brief  is  prepared /or  the  use  of  the  court.  In  fact,  the  law- 
yer considers  his  brief  as  a  means  of  minimizing  the  labor  of 
the  court  in  the  examination  of  the  records  and  of  enabling 
the  court  to  understand  the  contentions  of  counsel.  In 
general,  it  is  the  aim  of  the  legal  brief  to  put  the  court  in 
possession  of  such  information  as  shall  enable  it  to  act 
intelligently  with  reference  to  matters  of  law  and  of  fact 
upon  which  its  judgment  must  rest.^ 

1  Brief-Making  (The  West  Publishing  Company),  p.  219. 

2  Ihid.,  pp.  220-21. 


^' 


4  THE  BRIEF 

This  characteristic  of  the  brief  the  ordinary  student  is 
very  prone  to  overlook:  the  fact  that  he  is  preparing  his 
brief  not  for  his  own  use,  but  for  the  information  of  an- 
other.  The  fundamental  rule  of  a  good  brief,  whether  it 
be  the  lawyer's  brief  on  appeal  or  the  student's  brief  on 
an  argumentative  proposition,  is  that  it  shall  present  to 
anotherthanjts  maker  such  matter  as  is  essential  to  estaE- 
lish  the^ontentions  set  f orth^  There  is,  of  course,  no  reason 
why  the  maker  of  a  brief  should  not  make  use  of  his  own 
work,  if  he  so  desires.  If,  to  clear  his  own  mind  upon  some 
thesis  that  he  has  to  support  or  to  give  him  a  more  defi- 
nite grasp  of  a  theme  upon  which  he  finds  himseK  called 
to  address  an  audience,  he  regards  the  brief -form  as  a  prac- 
tical device,  he  is  unwise  if  he  does  not  take  advantage  of 
it;  no  other  form  of  the  outline  is  so  thoroughly  analytical 
as  is  the  argumentative  brief.  Yet  he  should  remember 
that  in  so  doing  he  is  bending  to  his  own  purposes  a  form 
of  composition  that  is  primarily  intended  to  serve  a  dif- 
ferent function. 

And  this  same  principle  —  that  the  brief  is  primarily 
intended  for  the  enlightenment  of  another  than  its  maker 
—  carries  with  it  the  necessity  of  absolute  clearness.  But 
the  final  judge  of  its  lucidity  is  not  the  writer  who  prepares 
it.  He  must  therefore  write  in  the  light  of  the  conviction 
or  the  appeal  that  his  work  is  to  convey  to  the  reader. 
The  maker  of  a  brief  is  often  prone  to  form  the  hasty  con- 
clusion that  because  his  work  is  clear  to  himself  it  must  be 
clear  to  another.  He  forgets  that  his  study  of  the  question 
has  familiarized  him  with  the  steps  of  the  proof,  but  that 
the  result  of  his  efforts  is  now  coming  for  judgment  before 
one  who,  it  may  be,  has  given  the  subject  only  casual  at- 
tention or  has  perhaps  never  heard  of  it  before. 

The  student  of  brief-making  must,  then,  carefully  dis- 
tinguish between  the  brief  and  any  form  of  outline  that 
partakes  of  the  nature  of  mere  personal  memoranda.  For 


THE  ARGUMENTATIVE  BRIEF  5 

example,  we  may  imagine  that  the  following  notes,  hastily 
jotted  down,  might  have  served  Lincoln  as  a  convenient 
reminder  of  the  matters  that  he  wished  to  develop  in  the 
course  of  his  famous  Springfield  speech  in  1858:  — 

(1)  **  A  house  divided  against  itself  '* 

(2)  Tendency  toward  nation-wide  slavery 

(3)  1854 

(4)  State  Sovereignty  and  the  Nebraska  Bill 

(5)  Dred  Scott 

(6)  1855 

(7)  Lecompton  struggle 

(8)  Present  crisis 

(9)  "Framed  timbers,"  etc.,  etc. 

But  unless  one  were  already  familiar  not  only  with  the 
events  of  the  senatorial  campaign  of  1858  but  also  with 
the  speech  itself,  what  value  would  this  series  of  data 
possess?  It  has  not  the  elementary  qualities  of  the  brief. 

(2)  A  glance  at  the  definition  further  shows  not  only 
that  the  brief  is  constructed  for  another  than  the  maker, 
but  that  its  purpose  is  to  acquaint  the  reader  with  "  the 
facts  under  discussion,"  etc.  This,  of  course,  presupposes 
careful  study  of  the  question  on  the  part  of  the  maker  of 
the  brief  before  he  undertakes  his  work.  The  importance 
of  this  preliminary  study  and  analysis  is  well  exemplified 
in  the  method  of  the  lawyer,  whose  first  task  is,  by  the 
comprehensive  and  orderly  mental  arrangement  of  princi- 
ples and  facts,  to  ascertain  a  proper  theory  of  his  case.^ 
This  determination  of  his  "  theory  "  is  of  vital  importance, 
for  upon  the  issues  thus  determined  he  must  try  his  case, 
and  upon  that  same  "  theory  "  he  must  base  his  appeal,  if 
appeal  be  necessary.  ^  And  similarly,  in  the  preparation 
of  th^  argumentative  brief,  one  must  establish  in  his 
reader's  mind  a  clearly  defined  theory,  proposition,  or 
thesis,  the  successive  steps  of  which  the  brief  presents  in 
orderly  array. 
*  Elliott,  General  Practice,  vol.  i,  sec.  93.       ^  Brief-Making,  p.  208. 


6  THE  BRIEF 

(3)  And,  finally,  the  definition  of  the  brief  implies  that 
in  the  treatment  accorded  the  subject  under  discussion  the 
proposition  must  be  kept  free  from  all  that  is  extraneous 
to  the  issue.  In  oral  presentation,  departure  from  the  issue 
is  easy,  and,  consequently,  the  fallacies  of  ignoring  and 
of  begging  the  question  are  not  uncommon.  Clearness  and 
directness,  at  the  very  outset,  are  fundamental  qualities 
in  successful  brief-making.  An  obscure  brief  is  a  contra- 
diction in  terms.  If  the  analysis  of  an  argument  does  not 
enlighten  the  mind  of  the  reader,  whatever  other  title  may 
be  applicable,  the  work  cannot  be  termed  a  '*  brief." 

Three  fundamental  rules  may,  then,  be  deduced  from 
the  definition  of  the  brief  as  set  forth  on  page  3,  to  wit:  — 
f  1.  The  brief  must  be  prepared  from  the  point  of  view  of 
the  reader;  not  from  that  of  the  maker, 

2.  The  brief  must  be  the  product  of  thorough  familiarity 
with  the  question  and  must  be  based  on  careful  analysis. 
V  3.  The  brief  must  be  clear,  and  free  from  all  digression. 

Subdivisions  of  the  Brief.  The  legal  brief  has  come  to 
possess  certain  distinctive  divisions  in  the  ordering  of 
material,  so  that  to-day  its  form  is  quite  conventional. 
Indeed,  in  some  States  the  form  is  prescribed  by  law,  as  is 
also  the  case  with  many  other  legal  instruments.  In  the 
typical  legal  "  brief  on  appeal  "  one  looks  for  the  following 
well-defined  stages,  or  subdivisions:  — 

1.  The  Title 

2.  The  Preliminary  Statement 

3.  The  Statement  of  the  Case  (sometimes  termed  "  The 
Facts  ") 

4.  The  Specification  of  Errors 

5.  The  Brief  of  the  Argument 

The  general  form  of  the  argumentative  brief,  as  it  has 
been  developed  in  practice,  follows  closely  after  the  legal 
.model.  It  contains  — 
l    1.  The  Title 


THE  ARGUMENTATIVE  BRIEF  7 

2.  The  Preliminary  Introduction 

3.  The  Main  Introduction 

4.  The  Statement  of  Issues 

5.  The  Brief  of  the  Argument 
l^    6.  The  Conclusion 

The  Title.  The  general  nature  of  the  title  of  the  legal 
brief  may  be  seen  in  the  following  examples:  — 


COURT  OF  APPEALS 

State  of  New  York 

Delia    King   as    Administratrix   of   the 
Estate  of  William  Melbury,  Deceased, 

PLAINTIFF-RESPONDENT 

vs. 

The    New    York    Central   and    Hudson 
River    Railroad    Company, 

DEFENDANT-APPELLANT. 


SUPREME  COURT  OF  IOWA 

December  Term,  1907. 


Martin  C.  Tapley, 

Respondent, 


vs. 


Jonas  D.  Westlock, 

Appellant. 


The  Title,  as  here  presented,  serves  the  practical  purpose 
of  facilitating  identification.  It  appears  at  the  head  of  the 
brief,  and  is  repeated  in  more  or  less  similar  form  on  the 


8  THE  BRIEF 

last  page,  so  arranged  as  to  serve  as  the  endorsement  when 
the  brief  is  folded  for  filing. 

In  furtherance  of  this  same  purpose  of  promoting  con- 

ivenience  of  identification  for  filing,  reference,  etc.,  the 
I  Title  of  the  argumentative  brief  is  but  slightly  different. 
i  It  appears  on  the  back  of  the  last  page  only,  and,  like  the 
■  title  of  a  book,  serves  as  an  endorsement.  For  example:  — 

!  WILLIAMS  COLLEGE 

Brief  of  an  argument  on 

THE  PARTICIPATION  OF  FRESHMEN  IN  INTERCOLLEGIATE 

ACTIVITIES 

William  D.  Spenlow,  '16 

'  January  24,  1916 

The  Preliminary  Statement  and  the  Preliminary  In- 
troduction. This  division  of  the  legal  brief  usually  follows 
immediately  after  the  Title.  It  states,  in  a  concise  para- 
graph, the  general  substance  of  the  case  at  issue.  It  is 
phrased  at  full  length,  rather  than  in  the  abbreviated 
form  that  characterizes  titles  and  general  memoranda.  The 
following  preliminary  statement  is  typical:  — 

This  is  an  appeal  from  a  judgment  of  the  Appellate 
Division,  Second  Department,  affirming  a  judgment 
of  the  Supreme  Court,  entered  in  the  Hamilton  County 
Clerk's  Office,  May  15,  1913,  in  favor  of  the  Plaintiff, 
and  against  the  Defendant  for  $5000  damages,  and 
$161.40  costs,  entered  upon  a  verdict  of  a  jury  after  a 
trial  held  at  the  March,  1913,  term  before  Mr.  Justice 
William  W.  Collins. 

Spenlow  and  Jorkins, 
Attorneys  for  Defendant. 

The  corresponding  division  of  the  argumentative  brief 
—  the  Preliminary  Introduction  —  is  but  a  slight  modi- 


THE  ARGUIViENTATIVE  BRIEF  9 

----Jfication  of  the  Preliminary  Statement  as  presented  above. 
I  (It  serves  to  introduce  the  subject  of  discussion  and  to 
-acquaint  the  reader  definitely  with  the  general  matter  in 
I  hand  before  he  undertakes  the  rather  elaborate  introduc- 
*  tion  wherein  terms  are  defined,  extraneous  matter  cleared 
away,  and  the  main  issues  unmasked.    It  therefore  con- 
veniently occupies  a  separate  page,  and  serves  the  same 
purpose  as  does  the  title-page  of  a  book.  For  instance:  — 

This  is  a  brief  of  a  speech  by  Senator  Beveridge  of 
Indiana,  delivered  in  the  Senate  of  the  United  States, 
January  9,  1900,  in  favor  of  the  retention  of  the  Philip- 
pine Islands  by  the  United  States,  and  presented  in 
reply  to  a  request  from  the  Senate  for  the  results  of  a 
personal  observation  recently  made  by  the  speaker  in 
-^ --___     the  islands  of  the  Far  East. 

The  advantage  of  this  somewhat  full,  but  certainly 
clear,  Preliminary  Statement  is  that,  at  the  very  thresh- 
old of  his  work,  the  reader  finds  his  mind  entirely  satis- 
fied as  to  the  exact  subject  that  the  maker  of  the  brief  is 
j  about  to  discuss.  It  is  no  part  of  this  Preliminary  Intro"^ 
duction,  however,  to  present  any  step  of  the  argument, 
or  even  to  clear  any  ground  preparatory  for  the  argument. 
It  is  simply  explanatory,  and  serves  no  other  purpose 
than  to  state  in  full  all  that  is  necessary  for  understanding 
the  exact  substance  of  the  brief  that  follows. 

The  Facts  and  the  Main  Introduction.  The  third  step"" 
in  the  legal  instrument  —  the  Facts,  or  the  Statement  of 
the  Case,  —  is  of  the  greatest  importance.  This  portion 
of  the  lawyer's  brief  should  contain  **  a  clear  and  concise 
statement  of  what  he  claims  to  be  the  substance  of  the 
record  .  .  .  the  substance  of  the  pleadings,  when  questions 
arise  upon  them,  and  also  the  leading  facts  established 
by  the  evidence,  where  questions  of  fact  are  to  be  deter- 
mined." ^ 

1  Brief-Making,  p.  223. 


10  THE  BRIEF 

So  important  is  this  portion  of  the  brief  in  legal  practice 
that  failure  to  include  it  within  the  instrument  is  attended 
with  various  penalties,  ranging  from  a  reprimand  to  dis- 
missal of  the  case.^  Indeed,  it  is  commonly  asserted  by 
lawyers  that  this  division  of  the  brief  presents  the  actual 
crux  of  the  whole  presentation.  What  the  court  needs  is 
not  guidance  upon  the  argumentative  and  legal  aspects 
of  the  case  submitted  by  counsel,  but,  rather,  a  lucid  ex- 
position of  the  facts.  With  these  the  court  should  be  quite 
equal  to  the  task  of  reaching  a  decision.  "  This  is  far  more 
important  than  it  appears  to  many  lawyers,  especially 
where  a  case  is  long  and  complicated,  and  where  the  facts, 
to  be  intelligible,  must  be  extracted  from  a  large  mass  of 
evidence  and  grouped  together.  To  suppose  the  court  will 
do  for  you  what  you  will  not  do  for  yourself,  and  produce 
order  out  of  chaos,  is  a  great  mistake.  You  must  start 
with  some  clear  and  logical'  theory  as  to  what  the  facts 
really  are,  for,  if  your  facts  do  not  commend  you  to  the 
appellate  court,  it  may  look  with  some  suspicion  on  your 
logical  conclusions,  however  convincing  they  may  be."  '^- 

An  example  of  the  Statement  of  the  Case,  as  it  appears 
in  the  legal  brief,  is  presented  on  page  44. 

The  corresponding  division  of  the  argumentative  brief 
—  the  Main  Introduction  —  is  similarly  of  the  utmost 
importance,  although  it  is  probably  of  less  relative  signifi- 
cance, in  this  case,  than  the  argumentative  matter  that 
follows.  It  is  a  recognized  principle  of  argumentative 
procedure  that,  previous  to  all  citation  of  evidence  and 
the  establishment  of  proof,  terms  shall  be  defined,  facts 
necessary  to  an  understanding  of  the  demonstration  set 
forth,  and  all  unessential  matter  eliminated.  Everything 
that  is  necessary  to  this  clearing  of  the  decks  belongs  to 
the  Main  Introduction.    The  various  steps  of  this  pre- 

*  Brief-Making,  pp.  223-24. 

2  Albany  Law  Journal,  October,  1889. 


THE  ARGUMENTATIVE  BRIEF  11 

liminary  analysis  are  thus  specified  by  W.  T.  Foster  in  his 

Argumentation  and  Debating  (p.  50) : 

1.  The  Origin  of  the  Question  (the  immediate  cause  for  dis- 
cussion) . 

2.  The  History  of  the  Question. 
:v     3.  The  Definition  of  Terms. 

4.  The  Exclusion  of  Extraneous  Matter. 

5.  The  Exclusion  of  Admitted  Matter.- 

6.  The  Exclusion  of  Waived  Matter. 

7.  The  Main  Contentions  of  the  Affirmative  and  of  the  Nega- 
tive. 

It  is  apparent  that  this  portion  of  the  brief  is  expository 
rather  than  argumentative.  Its  function  is  to  set  forth 
matter  upon  which  both  sides  are  in  agreement,  rather  than 
to  produce  conviction  upon  contentions  regarding  which 
there  is  difference  of  opinion.  It  is  also  evident  that  there 
can  be  no  argument  upon  the  proposition  at  issue  until 
there  is  common  understanding  between  the  opposing 
parties  regarding  the  meaning  of  the  terms  of  the  propo- 
sition, as  well  as  regarding  the  various  other  elements 
indicated  by  the  steps  of  the  analysis  as  presented. 

The  form  in  which  the  Main  Introduction  should  be  pre- 
sented may  be  seen  in  the  argumentative  brief  on  pages 
58-62. 

The  Specification  of  Errors  and  the  Statement  of  the 
Issues.  Upon  the  fourth  main  division  of  the  legal  brief, 
the  Specification  of  Errors,  it  is  not  necessary  to  dwell  at 
any  great  length.  The  exposition  of  its  various  details 
would  lead  to  the  consideration  of  legal  technicalities  quite 
beyond  the  scope  of  the  present  work.  The  principal  con- 
sideration is  that  the  specific  "  errors  "  alleged  be  set  forth 
clearly  and  in  due  order,  so  that  the  court  may,  without 
difficulty,  understand  the  underlying  contentions. 

In  the  argumentative  brief  the  corresponding  division, 
the  Statement  of  the  Issues,  has  much  the  same  purpose 


12  THE  BRIEF 

as  the  Specification  of  Errors:  to  present  the  main  conten- 
tions underlying  the  case  in  dispute.  The  function  of  the 
'  last  step  in  the  Main  Introduction,  as  shown  on  pages  61-6^, 
—  the  presentation  side  by  side  of  the  affirmative  and 
negative  arguments,  • —  is  to  arrive  at  the  basic  contentions 
upon  which  the  argument  is  to  be  constructed  after  all 
preliminary  matter  has  been  cleared  away.  These  funda- 
mental contentions  are  set  forth  in  definite  form  in  the 
Statenient  of  Issues.  An  example  of  such  presentation  will 
be  found  in  the  typical  argumentative  brief  on  page  62. 

The  Brief  of  the  Argument.  The  Brief  of  the  Argument 
is  identical  in  the  legal  and  the  argumentative  brief,  with 
the  exception  already  noted,  that  in  the  case  of  the  legal 
brief  there  is  a  growing  tendency  to  .abbreviate  this  por- 
tion and  to  lengthen  correspondingly  the  introductory 
portions  wherein  the  facts  are  set  forth  for  the  illumination 
of  the  court.  The  main  business  of  the  Argument  in  the 
legal  brief  is  to  present,  together  with  the  facts  or  proposi- 
tions open  to  discussion,  the  authorities  cited  by  way  of 
proof.  In  the  argumentative  brief  the  citation  of  author- 
ities is  much  less  extensive  and  less  convincing  than  in 
the  legal  brief;  the  former  contains  the  arguments  that 
sustain  the  proposition  under  discussion,  as  well  as  those 
that  through  refutation  destroy  the  contentions  of  the  op- 
posing side.  A  short  extract  from  a  brief  of  each  type 
will  illustrate  the  more  "  authoritative  "  character  of  the 
legal  brief  and  the  more  detailed  and  "  probative  "  char- 
acter of  the  argumentative  type. 

(From  a  Legal  Brief) 

POINT   FIRST 

A  general  assignment  without  preferences  will  not  be 
avoided  at  the  instance  of  a  particular  creditor,  and  such 
creditor's  claim  preferred,  even  on  proof  that   the   debtor 


THE  ARGUMENTATIVE  BRIEF  13 

fraudulently  deceived  the  said  creditor  for  the  purpose  of  pre- 
venting a  possible  interference  with  his  legitimate  intention  of 
distributing  all  his  property  ratably  among  all  his  creditors. 

(A)  General  assignments  without  preferences  are  favored  in  the 
law. 

Dombey  v.  Pipchin  Card  and  Paper  Co.,  42  App. 
Div.  277. 

(B)  A  domestic  corporation  may  assign  without  preferences  for 
the  benefit  of  its  creditors.  ^ 

Bagstock  V.  Western  Bridge  Co.,  123  N.Y.  654,  687. 

Carker  v.  Buckeye  Knitting  Co.,  17  App.  Div.  213. 

Bynsby  v.  Tox,  37  App.  Div.  299. 

Tumpkins  v.  Home  Machine  Co.,  17  Misc.  142; 
15  App.  Div.  287. 
Such  an  assignment  was  in  effect  forbidden  by  the  pro- 
visions of  the  Revised  Statutes  prohibiting  transfers  by 
an  insolvent  corporation  or  in  contemplation  of  its  insol- 
vency (5  R.S.,  sec.  675).  These  provisions  were  repealed 
by  the  Stock  Corporation  Law  of  1904,  which  was  amended 
in  1909  (sec.  67)  in  such  manner  as  to  sanction  inferen- 
tially  an  assignment  of  this  nature  if  made  without 
preferences. 

Perch  on  Corporations  (3d  edition)  vol.  iii,  pp. 
123-456. 

(C)  It  is  the  duty  of  the  directors  of  a  corporation  which  is  in- 
solvent to  make  a  pro-rata  distribution  of  its  property  among 
its  creditors. 

Stock  Corporation  Law,  section  ix. 

Code  of  Civil  Proceedings,   sections    2165-2651, 

4316-6453. 
Farmer's  Bank  v.  Skimpole  &  Co.,  18  Misc.  664, 
at  p.  376. 
No  argument  is  necessary  to  enforce  this  proposition. 
The  principles  of  fair  dealing  require  that  the  oflScers  who 
have  conducted  a  business  so  unsuccessfully  as  to  induce 
a  condition  of  insolvency  should  secure  to  the  corporate 
creditors  the  remaining  assets  of  the  corporation  rather 
than  risk  a  further  depletion  of  such  assets  by  a  continu- 
ation of  the  aforesaid  business. 


14  THE  BRIEF 

{From  an  Argumentative  Brief) 

I.  In  view  of  the  differences  of  opinion  that  have  arisen  be- 
tween Great  Britain  and  the  United  States  regarding  the 
matter  of  discrimination  in  tolls  on  the  Panama  Canal,  the 
question  should  be  referred  to  the  Court  of  Arbitration  at 
The  Hague:  for 

A.  The  Arbitration  Treaty  between  the  two  countries, 
(a)  by  its  terms  and  (6)  by  the  circumstances  attending 
its  adoption,  binds  the  United  States  to  this  method 
of  adjudication:  i.e., 

1.  By  its  terms:  for 

a.  It  states  that  "Differences  that  may  arise 
.  .  .  relating  to  the  interpretation  of  treaties 
existing  between  the  two  contracting  par- 
ties .  .  .  shall  be  referred  to  the  Permanent 
Court  of  Arbitration  established  at  The 
Hague." 

2.  By  the  circumstances  attending  its  adoption :  for 

a.  It  was  in  large  degree  through  the  public 
declarations  and  the  action  of  the  United 
States  that  the  arbitration  treaty  with 
Great  Britain  was  brought  about:  for 

(1)  It  was  as  a  result  of  the  address  of 
Secretary  of  State  John  Hay  to  the 
nations  of  the  world  to  enter  into 
arbitration  treaties  with  the  United 
States  that  negotiations  with  the 
United  States  began. 

(2)  It  was  in  response  to  resolutions 
adopted  by  Congress  in  1890  that 
the  treaty  itself  was  finally  negoti- 
ated: for 

(a)  In  July,  1893,  the  House  of 
Commons  referred  with  satis- 
faction to  the  action  of  Con- 
gress and  expressed  entire  con- 
currence in  the  idea  of  estab- 
lishing arbitration  relations. 

The  Conclusion.  There  remains  only  the  Conclusion, 
or  general  summary,  appended  for  the  sake  of  showing 


TPIE  ARGUMENTAirVE  BRIEF  15 

at  a  bird's-eye  glance  the  entire  fiel<{  that  has  been  covered. 
In  legal  briefs,  as  the  main  con  entions  are  generally 
printed  in  more  or  less  heavy-faced,  type,  the  main  issues 
stand  forth  with  sufficient  distinctness,  and  the  Conclu- 
sion is  not  necessary  as  one  of  the  integral  divisions  of 
the  instrument.  In  the  ordinary  argumentative  brief,  how- 
ever, in  which  the  issues  often  demand  complex  proof  and  in 
-which  refutation  frequently  plays  an  important  part,  it  is 
convenient  to  tabulate,  at  the  very  end,  the  contentions 
upon  which  the  demonstration  rests.  In  certain  instances 
where  the  argument  is  not  extended  and  the  main  issues 
are  sufficiently  distinct,  the  Conclusion  may  seem  needless, 
and  its  omission  justifiable.  The  judgment  of  the  brief- 
maker  will  determine  this  consideration.  Here,  as  else- 
where, clearness  must  serve  as  the  final  test.  Elucidation 
and  simplification  are  the  ultimate  ends  of  all  brief -draw- 
ing. 

An  example  of  the  form  that  the  Conclusion  generally 
takes  will  appear  in  the  typical  argumentative  brief  pre- 
sented on  pages  75-76. 


General  Rules  of  Brief -Construction.  In  the  drawing-up 
of  the  argumentative  brief,  three  fundamental  rules  under- 
lie all  others. 

(1)  The  first  of  these  is  to  the  effect  that  All  portions  of 
the  brief  must  be  expressed  in  the  form  of  complete  sentences. 

This  rule  of  construction  arises  from  the  fundamental 
principle  of  the  brief  itself,  as  expressed  in  the  original 
definition  (p.  3),  that  it  is  intended  primarily  not  for  the 
maker  of  the  instrument  but  for  the  reader.  It  is  an  axiom 
of  composition  that  a  proposition,  or  complete  statement, 
sets  forth  its  core  idea  with  less  opportunity  for  misunder- 
standing than  does  a  mere  term,  which  presents,  as  it  were, 
only  the  title  of  the  idea.  ^  A  proposition  contains  an  exact 


16  "HE  BRIEF 

statement;  a  term  merely  sets  forth  a  topic  regarding  which 
an  infinite  number  o  J  stateinents  may  be  predicated.  A 
term  may  connote  Ut  its  author  a  perfectly  definite  fine 
of  thought,  but  to  the  reader  this  same  term  may  convey 
nothing  more  than  a  vague  idea,  suggestive  of  no  coherent 
fine  of  reasoning.  A  comparison  of  the  two  passages  follow- 
ing will  at  once  demonstrate  the  superior  definiteness  of  the 
form  in  which  each  division  is  expressed  in  the  form  of  a 
complete  proposition. 

(a) 
A.  The  abandonment  of  the  Philippines  by  the  United  States 
an  irretrievable  blunder. 

1.  Readiness  of  other  powers  to  profit  by  their  abandon- 
ment. 

2.  Possibility  of  prompt  abandonment. 

ib) 
A.  The  abandonment  of  the  Philippines  by  the  United  States 
would  prove  an  irretrievable  blunder:  for 

1.  Every  other  great  power  stands  ready  to  seize  upon 
them,  if  they  should  be  abandoned  by  the  United 
States. 

2.  Should  retention,  in  the  end,  prove  undesirable,  the 
United  States  can,  at  any  time,  relinquish  them  under 
such  conditions  as  may  seem  most  wise. 

The  second  arrangement  leaves  no  latitude  to  the  reader; 
he  follows  perforce  the  line  of  reasoning  along  which  the 
mind  of  the  maker  of  the  brief  has  already  traveled. 

The  only  exception  to  this  rule  of  complete  statement 
may  be  found  in  those  cases,  partaking  of  the  nature  of 
exposition,  wherein  a  statement  is  followed  by  a  series 
of  illustrations,  authorities,  instances,  etc.   For  example: 

I.  During  the  past  fifty  years  various  attempts  have  been  made 
through  temperance  organizations  to  combat  the  liquor 
problem :  for  example, 

A.  The  Woman's  Christian  Temperance  Union  (1874) ; 

B.  The  National  Temperance  Society  (1865) ; 


THE  ARGUMENTATIVE  BRIEF  17 

C.  The  Church  Temperance  Society  (1881); 

D.  The  Anti-Saloon  League  (1895). 

It  would  seem  supererogatory  to  enlarge  these  sub- 
points  into  the  fully  predicated  form,  as  no  additional  clear- 
ness would  result.  At  the  same  time,  the  student  should  be 
on  his  guard  against  extended  indulgence  in  the  memoran- 
dum-like methods  here  illustrated.  It  is  always  safest  to 
err  on  the  side  of  clearness,  and  a  habit  of  abbreviation  is 
all  too  easily  encouraged,  with  the  attendant  risks  of  vague- 
ness and  obscurity  foreign  to  the  very  nature  of  the  brief. 

(2)  The  second  general  rule  of  brief -construction  is:  The 
coordination  and  subordination  of  the  several  propositions 
contained  in  the  brief  are  indicated  by  the  varying  widths  of     O 
the  margins  assigned  to  the  respective  propositions  and  by 
symbols  indicating  the  logical  relations. 

This  rule,  like  the  first,  arises  from  the  character  of  the 
original  definition.  The  brief  is  defined  as  containing  *'  the 
successive  contentions  that  are  to  be  maintained,  and  the 
reasons  or  the  authorities  upon  which  the  contentions  are 
based.'*  In  this  phrasing,  the  two  terms  "  successive  con- 
tentions "  and  "  reasons  or  authorities  upon  which  the 
contentions  are  based  "  imply  the  related  ideas  of  coordina- 
tion and  subordination,  very  important  considerations  in 
the  reasoning  process:  the  "  successive  contentions  "  are 
coordinated  one  with  the  other,  and  the  "  reasons  "  of 
each  contention  are  subordinated  to  the  contention  in 
question.  If  two  statements  are  of  equal  rank  they  occupy 
similar  positions  on  the  written  page,  set  off  with  equal 
margins;  if  one  is  subordinated  to  another,  the  subordina- 
tion is  indicated  by  carrying  the  dependent  proposition 
farther  to  the  right,  so  that  it  shall  stand,  as  it  were,  under 
and  within  the  contention  to  which  it  belongs.  Further- 
more, the  relative  logical  rank  is  indicated  by  letters  and 


18  THE  BRIEF 

figures  showing  at  a  glance  which  contentions  are  parallel 
and  which  are  inferior  in  logical  importance.  The  following 
example  will  illustrate  the  application  of  the  principles  of 
margins  and  of  notation: 

Proposition:  The  United  States  should  retain  Possession  of  the 
Philippines.^ 
I.  The  value  of  the  Islands  is  so  great  as  to  render  their  re- 
tention by  the  United  States  a  desirable  policy:  for 

A.  They  occupy  a  strategic  geographical  position  in  the 
Pacific  Ocean :  for 

1.  They  lie  at  the  converging  point  of  all  the  Pacific 
trade  lines  between  America,  Australia,  and  the 
Orient. 

2.  They  bring  the  United  States  nearer  to  Asia  and 
China  than  are  the  countries  of  Europe. 

3.  The  trade  of  the  Pacific,  thus  commanded  by 
the  Islands,  must  control,  in  great  degree,  the 
future  trade  of  this  country:  for 

a.  Europe  will  soon  cease  to  furnish  the 
United  States  a  market  for  its  com- 
merce: for 

(1)  Europe  is  every  year  manufacturing 
all  that  it  uses  and  securing  from  its 
colonies  all  that  it  needs  in  addition. 

b.  The  trade  with  China  in  particular  offers 
immense  possible  opportunities  to  the  com- 
mercial future  of  the  United  States:  for 

\  (1)  China's   foreign   commerce  in    1897 
amounted  to  $285,738,300,  of  which 
the  United  States  secured  less  than 
9%  as   against  50%  that   it   might 
easily  control. 
(2)  China's  foreign  commerce,  great  as  it 
already  is,  is  only  in  its  infancy:  for 
(a)  Its  railway  mileage  is  but  a 
fraction  of  what  it  promises  to 
become  with  the  development 
of  the  country. 

*  From  Senator  Beveridge*s  speech  in  the   United    States   Senate, 
delivered  in  1900. 


THE  ARGUMENTATIVE  BRIEF  19 

B.  The  natural  resources  of  the  Islands  render  them  in- 
valuable: for 

1.  They  abound  in  all  the  principal  products  of 
the  tropics  and  of  the  temperate  zones. 

2.  They  are  covered  with  rich  forests. 

3.  Great  deposits  of  copper  and  gold  abound  along 
their  creeks  and  rivers. 

II.  The  retention  of  the  Islands  by  the  United  States  is  but  the 
acceptance  of  a  moral  obligation:  for 

A.  It  is  in  accord  with  the  manifest  destiny  of  this  re- 
public: for 

1.  It  presents  a  means  of  securing  a  better  ad- 
ministration of  the  national  government  of  the 
country :  for 

a.  The  effective  administration  of  the  Islands 
by  the  United  States  will  constitute  a 
stimulus  that  will  react  upon  the  adminis- 
trative power:  for 

(1)  It  has  already  been  demonstrated  in 
the  case  of  England  in  relation  to 
India  and  Egypt  that  effective  co- 
lonial administration  acts  as  an 
inspiration  to  the  home  govern- 
ment. 

2.  Just  as  self-government  and  internal  develop- 
ment have  characterized  the  first  century  of  our 
national  growth,  so  it  is  but  reasonable  to  con- 
tend that  the  administration  and  development 
of  foreign  lands  that  have  come  into  our  pos- 
session will  constitute  the  dominant  note  in  the 
history  of  our  second  century  of  national  life. 

Makers  of  briefs  often  cause  confusion  in  that,  while  at- 
tempting to  secure  clearness,  they  neglect  to  observe  the 
importance  of  the  margins.  They  make  accurate  use  of 
symbols  (I,  A,  1,  a,  etc.),  but  they  nullify  the  effect  of 
the  notation  by  using  a  single  marginal  space.  That  this  at 
once  minimizes  all  the  effects  of  careful  analysis  will  appear 
from  the  following  version  of  one  portion  of  the  selection 
just  cited: 


20  THE  BRIEF 

II.  The  retention  of  the  Islands  by  the  United  States  is  but  the 
acceptance  of  a  moral  obligation:  for 

A.  It  is  in  accord  with  the  manifest  destiny  of  the  republic:  for 
1.  It  presents  a  means  of  securing  a  better  administration  of 
the  national  government  of  the  country:  for 
a.  The  eflFective  administration  of  the  Islands  by  the  United 
States  will  constitute  a  stimulus  that  will  react  upon  the  admin- 
istrative power:  for 

(1)  It  has  already  been  demonstrated  in  the  case  of  England  in 
relation  to  India  and  Egypt  that  effective  colonial  administra- 
tion acts  as  an  inspiration  to  the  home  government. 

A  brief  thus  boggled  does  little  toward  enlightening 
the  .mind  of  the  reader  as  to  the  course  of  the  reasoning 
processes. 

(S)  A  third  general  rule  of  the  brief  is :  Each  step  of  sub- 
ordination should  be  expressed  by  a  suitable  connective. 

This  rule  at  once  emphasizes  the  difference  between  the 
Main  Introduction  and  the  Brief  of  the  Argument:  that  the 
one  is,  in  large  degree,  expository  in  character,  and  the 
other  argumentative.  In  consequence  we  find  different 
connectives  between  the  principal  and  the  subordinate 
,  portions  of  the  two  divisions.  In  the  Main  Introduction 
--  these  connectives  are  likely  to  be  "as  follows,"  "  namely," 
L"for  example,"  and  the  like;  for  the  subordinations  gen- 
erally present  subdivisions,  instances,  or  illustrations  of 
the  principal  statements.  The  introductory  portions  of 
the  various  briefs  presented  hereafter  (e.g.,  p.  59)  indi- 
cate the  use  of  expository  connectives.  In  the  Brief  of 
the  Argument,  however,  the  case  is  otherwise.  Here  the 
principal  statements  consist  of  contentions  that  are  sup- 
ported by  evidence.  Consequently  the  natural  connective 
is  almost  invariably  "  for."  The  process  of  reasoning  is 
distinctly  analytical,  deductive,  the  fact  preceding  and 
the  causes  or  reasons  following.  The  selection  presented 
on  p.  18  illustrates  the  application  of  the  rule  in  question. 


THE  ARGUMENTATIVE  BRIEF  21 

This  general  rule  as  to  the  use  of  proper  connectives  is 
of  the  last  importance.  Forced  to  express  in  full  the  re- 
lations that  bind  together  the  successive  steps  of  his  rea- 
soning, the  maker  of  the  brief  cannot  easily  digress  into 
loose  analysis  or  fallacious  reasoning.  And  this  same  use 
of  connectives  does  not  permit  the  attention  of  the  reader 
to  wander  at  large  among  the  evidence  cited:  he  is  com- 
pelled to  follow  along  the  very  lines  of  reasoning  that 
guided  the  drafting  of  the  argument. 

In  connection  with  the  analytical,  or  deductive,  nature 
of  the  brief,  one  may  well  note  at  this  point  a  device  where- 
by the  logical  ordering  of  an  argument  may  be  tested. 
Inasmuch  as  the  brief  proceeds  from  the  conclusion  down 
through  the  successive  premises  upon  which  it  is  based, 
if  one  begins  with  the  ultimate  cause,  —  i.e.,  with  the  argu- 
ment last  in  order,  —  and  proceeds  upward,  substituting 
the  word  ".therefore  "  at  each  articulation  indicated  by  the 
word  "for,"  one  should  find  that  the  reasoning  advances 
synthetically,  or  inductively,  to  the  conclusion  to  be  es- 
tablished. Not  infrequently  the  application  of  this  "  re- 
verse proof  ^'  will  reveal  a  slip  at  some  point  where  the 
logical  processes  do  not  properly  adjust  themselves. 

An  example  of  the  application  of  this  reversal  of  the 
brief  order  is  presented  in  the  following: 

A.  The  creation  of  the  College  Senate  does  not  render  un- 
necessary the  further  continuance  of  the  Skull  and  Dagger 
Senior  Society:  for 

1.  The  object  of  the  Skull  and  Dagger  Society  is  separate 
and  distinct  from  that  of  the  College  Senate:  for 
a.  Instead  of  acting  in  a  governmental  capacity  in 
regulating  and  controlling  the  relations  between 
students  and  faculty,  as  is  the  ease  with  the  Sen- 
ate, Skull  and  Dagger  is  advisory  in  character:  for 
(1)  Its  purpose  is   to    urge   all  active  steps 
possible  for  advancing  the  best  interests 
of  the  College  at  large  through  undergrad- 
uate life :  for 


22  THE  BRIEF 

(a)  The  constitution  of  the  Society  thus 
formally  defines  the  purposes  of  the 
organization. 

If  one  were  now  to  begin  with  the  last  statement  and 
reverse  the  line  of  reasoning  by  substituting  "  therefore  ** 
at  each  stage,  the  result  would  be  somewhat  as  follows: 

A.  The  constitution  of  the  Skull  and  Dagger  Senior  Society 
defines  its  purpose  to  be  the  urging  of  all  active  steps 
possible  for  advancing  the  best  interests  of  the  College  at 
large  through  undergraduate  life:  therefore, 

1.  This  may  be  accepted  as  the  purpose  of  the  organiza- 
tion: therefore, 

a.  Instead  of  acting  in  a  governmental  capacity  in 
regulating  and  controlling  the  relations  between 
students  and  faculty,  as  is  the  case  with  the  Col- 
lege Senate,  the  Skull  and  Dagger  Society  is 
purely  advisory  in  its  function:  therefore, 

(1)  The  Skull  and  Dagger  Society  is  separate 
and  distinct  from  the  College  Senate  in  its 
object:  therefore, 

(a)  The  creation  of  the  College  Senate 
does  not  render  unnecessary  the- 
further  continuance  of  the  Skull  and 
Dagger  Society.   (Q.E.D.) 

Application  of  this  process  of  "  reversal "  to  the  follow- 
ing brief  will  reveal  flaws  in  the  reasoning  process  that,  at 
first  reading  in  the  original  form,  might  escape  atten- 
tion: 

I.  The  contention  that  Mr.  Douglas  did  not  act  in  accordance 
with  the  principles  of  the  Democratic  Party  in  failing  to 
support  the  English  Bill  is  not  to  be  maintained:  for 

A.  The  English  Bill  was,  in  fact,  a  pardon,  in  the  form 
of  a  compromise,  for  those  members  of  the  Demo- 
cratic Party  who  had  sinned  in  opposing  the  Lecomp- 
ton  Bill,  and 

B.  Mr.  Douglas  had  no  need  of  such  pardon:  for 

1.  He  was  justified  in  his  opposition  to  the  Lecomp- 
ton  Bill  on  the  ground  of  consistent  adherence  to 
the  principle  of  state  sovereignty. 


THE  ARGUMENTATIVE  BRIEF  23 

C.  The  English  Bill  differentiated  between  Kansas  and 
other  States  seeking  admission  to  the  Union. 

D.  The  English  Bill  was  in  opposition  to  the  principles 
underlying  the  national  government:  for 

1.  Equality  among  the  States  is  a  fundamental 
principle  of  this  government. 

2.  Such  use  of  the  Federal  power  as  was  justified 
by  the  English  Bill  would  be  prejudicial  to  the 
South:  for 

a.  There  was,  in  Congress,  a  majority  against 
the  South. 

The  reason  for  the  analytic,  or  deductive,  ordering  of 
brief -material  is  evident.  If  the  brief  were  to  be  constructed 
on  the  synthetic,  or  *'  hence-therefore  "  principle,  the  com- 
position would,  indeed,  be  entirely  logical  and  coherent, 
yet  the  principal  steps  of  the  main  argument  would  be 
thrown  into  positions  of  greatest  insignificance,  and  the 
ultimate  purpose  of  the  brief  would  be  defeated. 

Special  Rules  of  Construction.  In  addition  to  the  pre- 
ceding general  rules  there  are  several  specific  rules  that 
concern  various  details  of  brief -construction. 

(1)  The  Main  Issues,  constituting  the  fourth  principal 
division  of  the  argumentative  brief  (p.  7),  reappear  as  the 
principal  subdivisions  of  the  Main  Argument. 

They  thus  serve  to  keep  prominently  before  the  reader 
the  principal  contentions  upon  which  the  maker  of  the 
brief  is  basing  his  argument.  Reference  to  the  typical  brief 
on  pages  62-73  will  show  the  application  of  the  principle. 

(2)  Each  subordinated  statement  should  present  a  clear  and 
A  definite  reason  establishing  the  contention  to  which  it  is  ap- 

\  pended. 

The  following  examples  of  faulty  briefing  will  show  the 
confusion  that  results  from  failure  to  observe  this  rule: 


24  THE  BRIEF 

(a) 
I.  We  cannot  argue  that  it  is  fair  to  cheat  in  examinations, 

A.  Simply  because  we  do  not  believe  in  them,  and 

B.  Considering  the  privileges  granted  us  by  the  Board 
of  Education, 

1.  Whose  standards  are  high,  and 

2.  Whose  wish  is  for  our  welfare. 

C.  Furthermore,  it  is  our  duty  to  uphold  the  rules  and 
regulations  of  the  Board. 

This  specimen  is  mere  chaos  labeled  with  the  symbols 
of  a  brief.  There  is  no  proper  relation  between  the  sub- 
ordinated statements  and  the  principal  contentions.  The 
writer,  if  he  had  any  argument  at  all  in  mind,  probably 
reasoned  along  some  such  line  of  thought  as  indicated 
below: 

(b) 
I.  Our  personal  disbelief  in  the  principle  of  examinations  is 
no  sufficient  excuse  for  dishonesty  in  passing  them :  for 
A.  Whatever  be  our  personal  opinions,  we  are  under  ob- 
ligation to  meet   the   rules  and   regulations   of   the 
Board  of  Education:  for 

1.  The  Board  has  shown  that  it  is  desirous  of  our 
welfare:  for 

a.  It  has  granted  us  many  privileges. 

b.  It  has  established  a  high  standard  of  work. 

(a) 

I.  Governor  Johnson  holds  it  to  be  his  duty  to  sign  the  bill 
at  present  pending  in  California  with  reference  to  the  ex- 
clusion of  the  Japanese  from  holding  land :  for 
A.  Action  in  this  matter  has  become  imperative:  for 

1.  Thirty  years  ago,  when  the  present  constitution 
of  California  was  adopted,  the  people  wished  to 
prevent  this  immigration:  for 

a.  That  constitution  declared  the  presence  of 
foreigners  ineligible  to  citizenship  to  be 
dangerous  to  the  State. 

b.  The  Japanese  are  ineligible  to  citizenship. 


THE  ARGUMENTATIVE  BRIEF  25 

2.  The  people  want  this  bill:  for 

a.  The  vote  in  the  Senate  was  35  to  2,  and  in 
the  Assembly  72  to  3. 

Examination  of  this  attempt  at  briefing  will  show  that 
it  utterly  fails  to  meet  the  rule  regarding  logical  relations. 
The  fact  (1)  that  when  the  constitution  of  California  was 
adopted  thirty  years  ago  the  people  of  the  State  desired 
to  prevent  the  immigration  of  the  Japanese  does  not  estab- 
lish the  major  contention  (A)  that  action  in  excluding  the 
Japanese  from  holding  land  has  become  imperative  at  this 
time.  Nor  does  the  fact  (6)  that  the  Japanese  are  ineli- 
gible to  citizenship  establish  the  contention  that  thirty 
years  ago  the  people  of  California  wished  to  prevent 
further  immigration.  Readjusting  these  and  other  faults 
of  the  brief,  one  may  perhaps  secure  a  better  representation 
of  what  the  writer  really  had  in  mind: 

{h) 
I.  Governor  Johnson  of  California  is  justified  in  favoring  the 
bill    now   pending   before   the   legislature   of   that  State, 
whereby  it  is  proposed  to  deprive  the  Japanese  of  the  right 
to  own  land :  for 

A.  The  bill  is  in  accord  with  the  state  constitution:  for 

1.  The  constitution  declares  that  the  presence  of 
foreigners  who  are  (like  the  Japanese)  ineligible 
to  citizenship  is  a  menace  to  the  welfare  of  the 
State. 

B.  The  people  of  California  are  in  favor  of  the  proposed 
legislation:  for 

1.  In  the  State  Senate  the  vote  was  35  to  2  in  favor 
of  the  bill,  and  in  the  Assembly  it  was  72  to  3. 

(a) 
I.  The  contention  of  the  South  that  the  Republican  Party,  by 
its  policy  and  doctrines,  is  stirring  up  insurrection  among 
the  slaves  is  not  to  be  maintained :  for 

A.  It  has  never  been  possible  to  trace  any  uprising  among 
the  slaves  to  Republican  instigation:  for 


\\ 


26  THE  BRIEF 

1.  Even  the  Southerners  themselves  have  never  at- 
tempted to  fix  any  blame  upon  the  Republicans. 
B.  The  contention  that  the  John  Brown  raid  and  the 
Harper's  Ferry  affair  were  gotten  up  by  the  Republi- 
cans is  untenable:  for 

1.  It  has  been  pro^^ed  that  John  Brown  was  a  fa- 
natic, and  not  a  Republican. 

In  this  case  the  violation  of  the  rule  is  apparent  mainly 
in  the  loose  reasoning  that  characterizes  the  ordering  of 
the  thought.  Aside  from  the  general  assertiveness  of  the 
brief,  it  will  be  noticed  that  A.  1.  is  practically  contra- 
dictory of  I :  the  contention  that  Southerners  are  unable  to 
prove  their  charge  against  the  Republican  Party  is  scarcely 
refuted  by  saying  that  they  have  never  attempted  to 
bring  such  charge.  A  simplification  of  the  brief  will  bring 
out  more  clearly  the  ideas  that  really  underlie  the  writer's 
line  of  reasoning: 

(b) 
I.  The  contention  made  by  Southerners  to  the  effect  that  the 
Republican  Party,  by  its  policies  and  doctrines,  is  stirring 
up  insurrection  among  the  slaves  is  not  to  be  maintained :  for 

A.  No  actual  evidence  has  been  cited  in  support  of  this 
charge. 

B.  The  charge  that  John  Brown's  raid  was  conducted 
under  Republican  auspices  has  no  weight:  for 

1.  History  has  demonstrated   the  fact  that   John 
Brown  was  an  irresponsible  fanatic. 


.il 


(3)   The  use  of  ** hence, ^'   'therefore,''  or  other  illative 
^\connective  at  once  indicates  faulty  organization  of  material. 

The  reason  for  this  rule  has  already  been  indicated  under 
the  third  of  the  general  rules  of  the  brief  (p.  20).  As  the 
whole  system  of  brief-ordering  is  based  on  the  principle  that 
first  the  main  contention  must  be  laid  down,  and  then  that 
the  contention  itself  be  established  through  the  citation 
of  evidence,  the  use  of  "  hence,"  "  therefore,"  and  similar 


THE  ARGUMENTATIVE  BRIEF  27 

connectives  at  once  brings  about  a  revtersal  of  the  brief r 
ord^.  For  example: 

(«) 
I.  The  proposed  law  excludes  "all  persons"  ineligible  to  citi- 
zenship from  holding  land:  therefore 

A.  The  bill  does  not  specify  the  Japanese:  hence 

1.  The  proposed  law  does  not  discriminate  against 
the  Japanese. 

In  the  brief  as  here  presented  the  matter  included 
under  1  is,  in  fact,  the  principal  contention,  the  point  to 
be  proved;  and  yet  it  is  relegated  to  the  position  of  great- 
est insignificance.  The  entire  scheme  of  organization 
should  be  reversed,  thus : 

(b) 

I.  The  contention  that  the  proposed  legislation  establishes 
discrimination  against  the  Japanese  is  not  to  be  maintained: 
for 

A.  The  bill  in  question  does  not  specify  any  particular 
nation  by  name:  for 

1.  By  its  own  terms  it  excludes  "all  persons"  who 
are  ineligible  to  citizenship  from  the  right  to 
hold  land. 

The  confusion  resulting  from  the  use  of  "hence,"  "  there- 
fore," etc.,  is  particularly  difficult  to  handle  when  the  con- 
nective crops  out  in  the  very  midst  of  a  complex  argument; 
in  such  cases  there  is  not  even  the  consistency  of  logical 
method  that  is  found  in  the  foregoing  specimen,  and  the 
entire  structure  falls  to  pieces.  If  the  reader  will  attempt 
to  reorganize  the  following  example  of  briefing  into  co- 
herent and  logical  arrangement,  he  will  realize  the  obstacle 
presented  at  the  point  where  "  hence  "  appears  in  the 
argument: 

I.  Douglas's  statement  to  the  effect  that  Lincoln  had  charged 
the  Dred  Scott  case  with  prohibiting  the  negro  from  be- 


w 


28  -     THE  BRIEF 

coming  a  citizen  of  the  United  States  misrepresents  Lincoln's 
position:  for 

A.  Lincoln  merely  mentioned  the  following  decisions  of 
the  Supreme  Court  in  connection  with  the  Dred  Scott 
decision  as  indicating  a  conspiracy  for  nationalizing 
slavery,  viz.: 

1.  That  a  negro  cannot  become  a  citizen:  hence 
a.  Lincoln  supposed  that  this   decision  had 
been    rendered  in   order  to  prevent    the 
negro  from   ever  securing    the    rights  of 
citizenship. 
2.  That  taking  a  negro  into  territory  where  slavery 
is  prohibited  does  not  make  him  free. 

(4)  Double  notation  should  not  be  prefixed  to  a  statement 
in  a  brief. 

The  symbol  prefixed  to  a  statement  is  for  the  purpose 
of  showing  its  coordination  with  statements  of  equal 
rank  or  its  subordination  to  statements  of  superior  rank. 
To  affix  two  symbols  to  a  statement  would  therefore  seem 
to  indicate  the  impossible  situation  that  the  proposition 
in  question  is  coordinate  with  another  proposition  and 
at  the  same  time  subordinate  to  it.  For  example: 

^       («)    . 
I.  Shortening  the  college  course  to  three  years  is  unnecessary: 
for 

A.  Provision  is  already  made  for  students  who  are  unable 
to  spend  four  years  in  college. 

B.  1.  One's  educational  career  can  be  shortened  at  other 

points:  for 
a.  It  can  be  shortened  in  the  preparatory  school 
or  in  the  professional  school. 
2.  Either  of  these  is  better  than  to  cut  short  the  college 
course. 

At  the  point  marked  B,  the  brief -maker  evidently 
was  conscious  of  the  logical  correlation  between  the  pro- 
vision already  made  for  students  and  the  possibility  of 


THE  AEGUMENTATIVE  BRIEF  29 

shortening  the  college  course  at  various  points.  But  as 
the  matter  has  been  ordered,  there  is  a  logical  paradox  at 
the  statement  B.  1.  That  one's  education  can  be  shortened 
at  other  points,  as  shown  by  the  symbol  B,  is  parallel  with 
A,  and  yet,  by  the  presence  of  the  symbol  1,  it  is  appar- 
ently subordinate  either  to  A,  or  to  some  point  coordinate 
with  A,  namely,  with  itself.  Disregarding  the  assertive 
character  of  the  argument,  which  is  almost  totally  lacking 
in  evidence,  we  may  improve  the  general  structure  as 
follows: 

(b) 
I.  To  shorten  the  college  course  from  four  to  three  years  is 
unnecessary:  for 

A.  Provision  is  already  made  whereby  the  college  course 
may  be  completed  in  less  than  four  years. 

B.  Other  portions  of  one's  educational  career,  such  as  the 
preparatory  school  or  the  professional  school,  can  be 
cut  short  with  less  loss  than  would  result  from  cur- 
tailing the  work  of  the  college. 

(5)  When  coordinated  statements  in  a  brief  stand  in  con- 
trast to  one  another,  or  in  any  suspended  relation,  the  several 
related  propositions  constitute,  in  reality,  a  single  compound 
argument,  rather  than  a  succession  of  equivalent  contentions. 
In  such  cases  the  relation  may  be  fittingly  expressed  by  the 
use  of  the  symbols  A,  A',  A";  1,  V,  1",  etxi.  For  example: 

I.  The  contention  that  we  should  not  consider  the  provision 
of  the  treaty  relating  to  "equality"  as  intended  to  be  inter- 
preted literally  is  untenable:  for 

A.  Although  the  treaty  does  not  expressly  confer  upon 
the  United  States  sovereign  rights  for  the  protection  of 
the  territory  embracing  the  Canal,  yet 
A'.  The  omission  of  a  clause  to  that  effect  is  easily  to  be 
explained:  for 

1.  The  fact  that  neither  party  to  the  treaty  enjoyed 
any  title  to  the  region  to  be  traversed  by  the 
Canal  precluded  the  insertion  of  such  a  clause. 


so  THE  BRIEF 

In  this  case  it  is  apparent  that  A  is  not  complete  without 
A',  and  vice  versa.  The  advantage  of  the  notation  hes  in 
the  fact  that  the  coordination  and  the  unity  of  the  two 
statements  are  both  indicated,  and  at  the  same  time  it  is 
possible  to  subordinate  under  either  or  both  of  the  main 
statements  such  proof  as  may  be  required.  This  method 
of  notation,  however,  should  be  used  with  discrimination. 
The  tendency  of  beginners  is  always  to  over-use  the  A- A' 
typ>e  of  ordering  and  to  bind  together  in  this  compound 
relation  arguments  that  are  merely  simple  coordinations. 
The  use  of  "  although  .  .  .  yet,"  "  whereas  .  .  .  yet,"  etc., 
will  always  supply  a  test  showing  whether  the  balanced 
method  is  properly  selected. 

(6)  Statements  presented  in  proof  of  a  contention  should 
he,  in  turn,  supported  by  proof  whenever  possible,  or  estab- 
lished by  the  citation  of  definite  authority. 

The  failure  to  observe  the  j&rst  part  of  this  rule  results 
in  mere  assertiveness,  and  the  unsupported  ipse  dixit  of 
the  brief-maker  is  not  likely  to  carry  conviction.  The 
extent  to  which  the  presentation  of  proof  shall  be  carried 
must  depend  on  the  general  character  of  the  argument.  In 
any  case,  however,  the  purpose  of  the  brief  is  defeated 
when  the  reader,  at  the  end  of  a  division  in  the  demon- 
stration, still  asks,  "  But  why  is  this  true?  "  Consequently 
it  is  always  desirable,  when  possible,  to  carry  the  demon- 
stration down  to  the  point  where  the  statements  become 
axiomatic  in  character  or  may  be  fairly  regarded  as  ad- 
mitted matter.  The  following  brief  illustrates  the  case 
in  point: 

I.  Experimental  vivisection  has  resulted  in  practical  benefit 
to  mankind:  for 

A.  It  has  brought  to  light  many  psychological  facts:  for 
1.  All  the  senses  have  been  analyzed  through  experi- 
ments on  living  creatures,  brute  and  human:  for 


THE  ARGUMENTATIVE  BRIEF  SI 

a.  According  to  Leffingwell "  It  is  the  only  way 
in  which  these  facts  can  be  ascertained." 
B.  It  has  proved  of  great  benefit  to  the  medical  profes- 
sion: for 

1.  It  has  discovered  many  needful  remedies  for 
otherwise  fatal  diseases,  such  as  virus  and  anti- 
toxin. 

2.  It  has  revealed  to  our  great  physicians  the  value 
of  the  human  body. 

This  brief  is  characterized  by  pervasive  looseness  of 
reasoning;  it  would  carry  little  conviction  to  one  opposed 
to  the  cause  of  vivisection.  At  the  point  1,  under  B,  the 
reader  is  likely  to  feel  considerable  doubt  as  to  how  the  dis- 
covery of  virus  and  anti-toxin  has  proceeded  from  the 
practice  in  question,  —  a  consideration  fundamental  to  the 
entire  argument.  Furthermore,  the  reader  will  certainly 
balk  at  accepting  the  vague  generalization  stated  in  2, 
under  the  same  head;  even  were  it  clear  what  is  meant  by 
"  the  value  of  the  human  body,"  the  assertion  that  its 
revelation  is  due  to  vivisection  will  need  considerable  elab- 
oration. 

The  necessity  for  detailed  proof  is  often  met  by  the  cita- 
tion of  authorities,  but  this  is  satisfactory  and  convincing 
only  in  so  far  as  it  is  acceptable  to  the  reader  of  the  brief. 
Consequently  the  citation  of  an  authority  must  be  definite 
both  as  to  the  identification  of  the  authority  cited  and  as 
to  the  location  of  the  opinion  presented  in  proof.  In  the 
brief  just  quoted,  for  example,  a  judicious  reader  will  give 
little  weight  to  the  statement  regarding  the  analysis  of  the 
senses  through  experiments  on  living  creatures  unless  he 
has  some  definite  knowledge  regarding  Leflingwell,  and 
the  source  of  the  statement  quoted.  Who  is  Leffingwell.'^ 
Is  he  an  unprejudiced  authority?  Is  he  capable  of  speaking 
authoritatively  on  this  matter?  Why  is  he  alone  cited  in 
support  of  the  argument?  Where  does  he  make  any  such 
assertion  as  cited  in  the  brief?   Unless  the  reader  is  satis- 


32  THE  BRIEF 

iSed  on  these  and  similar  matters,  the  citation  from  LeflSng- 
well  might  just  as  well  be  omitted  altogether  and  the  state- 
ment regarding  the  analysis  of  the  senses  made  on  the 
unsupported  authority  of  the  brief -maker. 

An  interesting  example  of  the  unsatisfactory  presenta- 
tion of  authorities  is  contained  in  the  following  extract 
from  a  brief  regarding  the  advisability  of  subsidizing  our 
merchant  marine: 

I.  The  United  States  possesses  all  the  manufacturing  facilities 
necessary  to  establish  a  successful  merchant  marine:  for 

A.  The  United  States  can  sell  plates  for  steel  ships  at  a 
lower  figure  than  that  at  which  England  must  buy 
them,  says  an  English  expert :  for 

1.  He  shows  that  the  United  States  can  make 
rails  at  Pittsburg,  ship  them  across  to  Eng- 
land, pay  railway  and  ocean  freights,  and  even 
then  undersell  the  English  manufacturer. 

B.  Francis  Bowles,  recently,  in  the  face  of  close  com- 
petition from  the  leading  shipyards  of  Great  Britain 
and  the  Continent,  was  able  to  secure  to  the  United 
States  a  contract  of  $22,000,000  for  two  Argentine 
battleships. 

n.  The  United  States  has  the  material  for  providing  eflScient 
seamen  to  man  an  efficient  merchant  marine:  for 
A.  A  British  marine  officer  has  recently  spoken  favorably 
of  our  seafaring  material :  for 

1.  He  has  said,  "There  are  hordes  of  men  in  the 
United  States  of  the  calibre  of  such  men  as 
Peary  and  those  engaged  in  the  'Frisco  and 
New  Bedford  whalers." 

2.  He  has  said  also,  "There  must  be  thousands 
of  sons  of  Britishers  and  Scandinavians  in 
America  who  have  the  'call  of  the  sea'  in  their 
blood,  and  who  would  take  to  the  water  like 
a  duck  if  they  had  the  scope." 

in.  The  United  States  has  the  scientific  marine  knowledge  to 
handle  efficiently  her  own  merchant  marine:  for 

A.  In  a  recent  magazine  article  the  following  state- 
ments are  made  by  an  authority  on  marine  matters, 
.  .  .  etc. 


THE  ARGUMENTATIVE  BRIEF  33 

The  unsatisfactory  argumentative  character  of  the  fore- 
going is  rendered  even  more  clear  if  one  places  beside  it,  by 
way  of  contrast,  the  following  extract  from  a  brief  assailing 
the  right  of  the  United  States  to  interfere  in  the  affairs  of 
the  Congo  Free  State: 

I.  The  contention  that  international  law  would  justify  the 
United  States  in  interfering  in  order  to  prevent  alleged 
cruelties  in  the  Congo  Free  State  is  not  well  maintained :  for 
A.  That  international  law  would  condemn  such  inter- 
ference both  in  theory  and  in  practice  will  appear 
from  the  following  considerations: 

1.  It  would  condemn  interference  in  theory:  for 

a.  Wharton,  on  page  202  of  his  International 
Law,  writes,  "It  is  not  permissible  for  one 
sovereign  to  address  another  sovereign  on 
political  questions  pending  in  the  latter's 
domains  unless  invited  to  do  so." 

h.  Hengstler,  in  vol.  i  of  the  California  Univer- 
sity Chronicle,  writes,  "As  long  as  the  inde- 
pendence of  states  is  a  principle  of  interna- 
tional law,  it  cannot  be  perceived  how  the 
limits  of  legal  intervention  can  be  extended 
beyond  the  scope  of  the  self-interests  of  the 
intervening  state." 

c.  Lawrence's  International  Law  lays  down 
the  following  principle:  "So  prone  are 
powerful  states  to  interfere  in  the  affairs 
of  others,  and  so  great  are  the  evils  of  in- 
terference, that  a  doctrine  of  absolute  non- 
intervention has  been  put  forth  as  a  protest 
against  incessant  meddling." 

2.  It  would  condemn  interference  in  practice  as 
maintained  by  the  United  States:  for 

a.  In  the  case  of  the  Jews  in  Morocco  in 
1878  this  country  refrained  from  interfer- 
ence on  the  ground  that  such  action  would 
be  improper,  as  shown  in  the  letter  of 
Secretary  of  State  Evarts  to  the  United 
States  Minister  at  Morocco. 

b.  In  the  case  of  the  Russian  Jews  in  1882  the 


34  THE  BPJEF 

United  States  again  refrained  from  inter- 
ference on  the  same  ground,  as  shown  by 
the  letter  of  Secretary  of  State  Frelinghuy- 
sen  to  the  United  States  Minister  at  St. 
Petersburg. 
II.  Interference  by  the  United  States  in  the  affairs  of  the 
Congo  Free  State  would  be  inexpedient:  for 

1.  It  would  be  opposed  to  the  traditional  policy 
of  the  Government:  for 

a.  Washington  in  1797  stated  that  "it  must 
be  unwise  for  us  to  implicate  ourselves  by 
artificial  ties  in  the  vicissitudes  of  European 
politics." 

b.  Monroe,  in  his  message  to  Congress  in  1823, 
wrote  "Our  policy  in  regard  to  Europe  re- 
mains the  same,  which  is  not  to  interfere 
in  the  internal  concerns  of  any  of  its 
powers." 

c.  Henry  Clay  in  1828  said:  "The Government 
of  the  United  States  scrupulously  refrains 
from  taking  part  in  the  internal  dissensions 
of  foreign  states." 

d.  In  1863  Secretary  of  State  Seward  main- 
tained: "Our  policy  of  non-intervention  in 
the  internal  affairs  of  sovereign  states  has 
become  a  traditional  one,  which  could  not 
be  abandoned  without  the  most  urgent  oc- 
casion, amounting  to  a  manifest  necessity." 

2.  It  is  opposed  to  the  present  policy  of  the  United 
States:  for 

a.  With  reference  to  the  very  question  of  the 
Congo  Free  State,  President  Cleveland,  in 
1885,  made  the  following  statement:  "This 
reserve  to  give  plenipotentiary  powers  to 
our  delegates  at  the  Berlin  Congress  was 
due  to  the  indisposition  of  this  Govern- 
ment to  share  in  jurisdictional  questions  of 
remote  foreign  territories." 

b.  President  Roosevelt,  through  Secretary  of 
State  Hay,  in  defining  the  grounds  upon 
which  this  Government  became  a  party  to 
the  Hague  Convention,  states:  "Nothing 


THE  ARGUMENTATIVE  BRIEF  35 

contained  in  the  convention  shall  be  so  con- 
strued as  to  require  the  United  States  of 
America  to  depart  from  its  traditional  pol- 
icy of  not  intruding  upon,  interfering  with, 
or  entangling  itself  in  the  political  ques- 
tions, or  policy,  or  internal  administration 
of  any  foreign  state." 

(7)  One  should  not  cite  in  support  of  a  contention  a  state- 
\ment  that  is,  in  reality,  no  more  than  a  mere  repetition  of  the 
contention  under  discussion. 

This  rule  follows  from  the  preceding  as  a  natural  corol- 
lary:  any  violation  results  in  adducing  evidence  that  proves 
nothing;  it  presents  the  fallacy  of  arguing  in  a  circle, 
without  advancing  the  demonstration  of  the  proposition. 
A  single  example  will  illustrate  the  principle: 

I.  In  opportunities  for  joining  a  fraternity  the  man  of  limited 
means  is  at  a  distinct  disadvantage:  for 

A.  In  the  selection  of  candidates,  the  fraternities  must,  of 
necessity,  consider  the  ability  of  the  candidates  to 
meet  expenses:  for 

1.  Outstanding  debts,  upkeep  of  chapter-houses, 
and  the  like  render  it  necessary  that  the  mem- 
bers shall  be  able  to  contribute  their  part  toward 
the  expenses  of  the  organizations. 

In  this  argument  there  is  little  progress  from  A  to  1. 
Reduced  to  their  lowest  terms,  these  arguments  amount 
to  much  the  same  thing,  and  it  is  quite  possible  to  pass 
from  I  to  1  without  making  use  of  the  intermediate  step 
in  A.  Condensation  into  two  principal  statements  would 
improve  the  logical  analysis  of  the  argument. 

Vi        (8)  Each  proposition  contained  in  the  brief  should  con- 
\  sist  of  but  a  single  statement. 

This  rule  follows  from  the  first  of  the  general  rules  of 
brief -construction  as  a  corollary,  and  the  reason  for  it  is 


36  THE  BRIEF 

clear.  In  case  a  double  proposition  be  followed  by  proof, 
the  relation  of  the  proof  will  not  be  evident;  it  may  bear  on 
one  portion  of  the  compound  statement,  or  it  may  bear  on 
another;  in  few  cases  would  the  proof  apply  with  equal 
force  to  both  clauses.  An  example  will  make  the  principle 
clear: 

I.  Douglas  in  his  reply  misrepresented  Lincoln's  position  with 
reference  to  the  Declaration  of  Independence,  and  deliber- 
ately garbled  Lincoln's  remarks  contained  in  the  Spring- 
field speech:  for 

A.  He  represented  Lincoln  as  maintaining  that  the  Decla- 
ration of  Independence  conferred  upon  the  negro  ab- 
solute and  complete  equality  with  the  white  man:  for 
1.  Although   Lincoln   had    distinctly   limited   the 

equality  of  rights  enjoyed  by  the  negro, 
1'.  Yet  Douglas  quoted  him  as  saying  .  .  .  etc.         4 

In  this  brief  the  confusion  of  reasoning  is  evident.  The 
vn*iter  in  A,  with  its  succeeding  subdivisions,  demonstrates 
Douglas's  misrepresentation  of  Lincoln's  attitude  with 
reference  to  the  position  of  the  negro  as  defined  in  the 
Declaration;  but  it  will  be  noted  that  because  Douglas 
misrepresented  Lincoln  he  did  not  necessarily  garble  one 
of  Lincoln's  speeches.  Yet  in  the  two  final  propositions 
the  writer  has  evidently  returned  to  the  second  idea  con- 
tained in  the  original  statement. 

Closely  allied  to  this  same  looseness  of  phrasing  is  that 
in  which  ambiguity  arises  from  the  presence  of  two  pred- 
icates, one  independent  and  the  other  dependent,  so 
closely  placed  one  to  the  other  that  the  reader  has  diflS- 
culty  in  determining  to  which  the  proof  belongs.  An  ex- 
ample of  this  faulty  phrasing  appears  in  the  following: 

I.  The  Democrats  maintain  that  the  Filipino  should  have  im- 
mediate self-government:  for 
A.  He  is  capable  of  it:  for 

1.  All  men  are  free  and  equal  and  endowed  with 
equal  powers. 


THE  ARGUMENTATIVE  BRIEF  37 

In  this  case  the  presence  of  the  two  italicized  verbs 
arouses  some  doubt  as  to  whether  the  following  proof  is 
applicable  to  the  one  or  to  the  other.  In  the  one  case  the 
argument  is  to  prove  the  statement  that  the  Democrats 
maintain  a  certain  position,  a  statement  that  would  prob- 
ably require  no  demonstration;  in  the  other  case,  the  ar- 
gument presents  the  reason  justifying  the  Democrats  in 
their  contention,  a  far  more  likely  course  of  reasoning. 
Were  the  original  statement  to  avoid  the  double  predica- 
tion in  some  such  way  as  "  The  Filipino,  according  to  the 
Democrats,  should  have  immediate  seK-government," 
the  ambiguity  would  at  once  disappear. 

(9)  Care  should  be  taken  not  to  introduce  into  the  body  of 
a  statement,  as  an  essential  part  of  it,  a  phrase  or  clause 
that  should  be  subordinated  as  proof. 

(a) 
I.  All  these  laws  were  so  framed  as  to  depend  one  upon  the 
other:  hence 

A.  Being  a  part  of  a  system  of  compromises,  the  Utah  and 
New  Mexico  Bills  cannot  be  considered  as  models:  for 
1.  Even  Judge  Douglas  himself  did  not  use  them 
as  models  when  he  drew  up  his  Nebraska  Bill. 

Aside  from  the  faulty  coordination  at  the  end  of  I,  which 
ruins  the  articulation  of  the  reasoning,  the  phrase  "  Being  a 
part  of  a  system  of  compromises  "  is,  in  reality,  an  argument 
in  proof  of  the  contention  that  the  Utah  and  New  Mexico 
Bills  cannot  be  considered  as  models.  The  phrase  should, 
therefore,  be  expanded  into  a  complete  statement  and 
properly  subordinated  to  the  proposition  of  which  it  is  a 
proof.  The  brief,  expanded  into  proper  form,  would  read  as 
follows : 

I.  The  contention  of  Douglas  to  the  effect  that  the  Nebraska 
Bill  merely  embodies  the  principles  of  the  Compromise  Bill 


38  THE  BRIEF 

of  1850,  of  which  the  Utah  and  New  Mexico  Bills  are  but  a 
part,  is  not  to  be  maintained :  for 

A.  The  Compromise  Bill  of  1850  establishes  no  precedent 
for  bills  concerning  territorial  legislation:  for 

1.  The  system  of  compromises  of  which  it  is  com- 
posed was  intended  merely  to  meet  the  peculiar 
exigencies  of  the  moment:  and 

2.  Judge  Douglas  himself,  in  framing  his  Nebraska 
Act  did  not  use  the  Utah  and  New  Mexico  Bills 
as  models:  for  .  .  .  etc. 

The  following  proposition  from  an  undergraduate  brief 
further  illustrates  the  point  under  consideration: 

The  government  has  made  a  number  of  appropriations  for  the 
improvement  of  the  Upper  Mississippi,  but  of  uncertain  and  vary- 
ing amounts,  thus  adding  an  element  of  insecurity  to  the  pres- 
ent situation. 

The  writer  of  the  foregoing  has  merged  into  a  single 
proposition  both  cause  and  effect,  fact  and  demonstration. 
The  core  of  the  matter  appears  after  the  word  "  thus," 
and  the  ordering  requires  complete  reorganization. 

The  illustration  presented  under  Rule  8  also  exempli- 
fies the  violation  of  this  rule,  for  the  statement  that  Douglas 
garbled  Lincoln's  remarks  as  contained  in  the  Springfield 
speech  may  be  regarded  as  evidence  of  the  first  portion  of 
I,  that  he  misrepresented  Lincoln's  position  with  reference 
to  the  Declaration  of  Independence. 

\\      (10)  Refutation  should  he  so  phrased  as  to  present  clearly 
the  contention  against  which  it  is  directed. 

It  is  always  desirable,  and  often  essential,  that  the 
maker  of  a  brief  distinguish  between  the  constructive 
arguments  whereby  he  establishes  his  own  contentions, 
and  the  destructive  arguments  whereby  he  attacks  the 
contentions  of  his  opponent.  And  in  attacking  an  oppo- 
nent's position  one  must  present  the  point  at  issue  clearly 


THE  ARGUMENTATIVE  BRIEF  39 

and  fairly.  With  this  end  in  view,  a  conventional  form  for 
the  presentation  of  refutation  has  been  developed:  "  The 
contention  that  (followed  by  the  issue  under  discussion) 
is  untenable:  f or  .  .  .  "  etc.  In  this  way  the  maker  of  the 
brief  has  the  opportunity  of  presenting  his  opponent's  posi- 
tion as  fully  and  as  clearly  as  need  be,  and  of  showing  the 
ground  of  attack.  The  following  specimen  of  briefing  will 
illustrate  the  presentation  of  both  constructive  and  refu- 
tatory  arguments: 

I.  The  treaty  relations  existing  between  the  United  States  and 
Great  Britain  with  reference  to  an  Isthmian  Canal  preclude 
the  United  States  from  making  discrimination  in  tolls  be- 
tween its  own  ships  and  those  of  Great  Britain :  for 

A.  The  Clayton-Bulwer  Treaty  of  1850,  by  the  circum- 
stances attending  its  adoption,  binds  the  United  States 
to  observe  equality  between  the  two  countries  con- 
cerned: for 

1.  The  United  States  took  the  initiative  in  seeking 
to  secure  the  treaty. 

B.  The  contention  that  the  United  States  is  relieved  of 
treaty  obligations  by  the  fact  that  matters  relating  to 
the  coasting-trade  are  not  of  international  but  of 
peculiar  domestic  concern  is  not  to  be  maintained: 
for 

1.  This  contention  has  already  been  disproved  in 
the  case  of  the  Canadian  Canal  question  and  the 
Treaty  of  Washington  in  1871. 

C.  The  contention  that  the  clause  in  the  treaty  regarding 
equality  of  tolls  is  not  to  be  interpreted  literally,  on 
the  ground  that  it  deprives  the  United  States  of  the 
right  to  defend  itself  and  to  protect  its  own  territory, 
is  not  to  be  maintained:  for 

1.  Great  Britain  has  already  admitted  the  sover- 
eignty of  the  United  States  over  the  Canal  Zone: 
for 

a.  Sir  Edward  Grey  in  his  note  of  November 

14, 1912,  has  specifically  so  stated:  for 

(1)  He  writes,  "After  summarizing  the 

circumstances,  .  .  .    His     Majesty's 

Government   does    not  question  the 


40  THE  BRIEF 

title  of  the  United  States  to  exercise 
belligerent  rights  for  the  protection  of 
the  Canal." 

The  beginner  in  brief -making  is  prone  to  state  his  ref- 
utation in  the  simple  negative  form,  leaving  the  reader 
to  infer  the  refutatory  character  of  the  proposition.  For 
example,  one  might  thus  state  B  in  the  foregoing  brief: 
"  The  United  States  is  not  relieved  of  treaty  obligations 
by  the  fact  that  ..."  etc.  This  loose  phrasing,  however, 
is  faulty  in  that  (1)  the  maker  of  the  brief  must  not  leave 
the  reader  to  form  his  own  inferences  as  to  what  the  brief 
may  perhaps  mean,  but  must  make  the  character  of  all  the 
propositions  clear  beyond  question;  and  (2)  it  encourages  a 
tendency  to  slight  the  explicit  phrasing  of  one's  opponent's 
position.  The  following  brief  thus  violates  the  proper  form 
of  presenting  refutation: 

(fl) 
I.  Governor  Johnson  of  California  is  justified  in  signing  the  bill 
now  pending  in  the  State  Legislature,  excluding  the  Japanese 
from  holding  land  within  the  State:  for 

A.  The  proposed  bill  is  not  unprecedented:  for 

1.  At  least  three  States  in  the  Union  have,  in  the 
past,  enacted  laws  similar  to  that  now  contem- 
plated in  California. 

B.  The  proposed  law  violates  no  treaty  rights:  for 

1.  It  reads:  "All  aliens  not  entitled  to  citizenship 
may  acquire  real  property  to  the  extent  of  any 
treaty  now  existing  between  the  United  States 
and  any  other  Government." 

While  the  arguments  marked  A  and  B  might  be  con- 
structive arguments  advanced  by  one  supporting  the  action 
of  Governor  Johnson,  yet  those  who  are  familiar  with  the 
discussion  know  that  the  two  points  in  question  contain, 
in  reality,  two  of  the  principal  contentions  advanced  by 
those  who  assail  his  position.    Consequently  the  phrasing 


THE  ARGUMENTATIVE  BRIEF  41 

should  be  changed  so  as  to  indicate  that  the  two  conten- 
tions are  destructive  rather  than  constructive;  thus: 

(&) 
I.  Governor  Johnson  of  CaHfornia  is  justified  in  signing  the 
bill  now  pending  in  the  State  Legislature,  whereby  the  Japa- 
nese are  excluded  from  holding  land  within  the  State:  for 

A.  The  contention  that  the  bill  in  question  is  unprece- 
dented is  not  to  be  maintained :  for 

1.  At  least  three  other  States  have,  without  protest 
or  objection,  passed  similar  bills  (see  Governor 
Johnson's  letter  to  Secretary  of  State  Bryan, 
May  12,  1912). 

B.  The  contention  that  the  proposed  bill  is  in  violation 
of  the  treaty  between  the  United  States  and  Japan 
is  not  to  be  maintained:  for 

1.  The  phraseology  of  the  treaty  on  the  point  in 
question  is  .  .  .  etc. 

(11)  In  the  Conclusion  of  a  brief  it  is  customary  to  pre- 
sent  in  order  the  main  contentions,  prefaced  by  the  word 
"  since,''  and  to  close  with  the  proposition  under  discussion; 
thus  : 

Conclusion 
I.  Since  the  United  States  possesses  the  necessary  resources 

for  successful  competition  with  other  nations;  and 
II.  Since  the  United  States  has  sufficient  population  from 
which  to  man  an  efficient  merchant  marine;  and 

III.  Since  the  United  States  has  sufficient  trade  in  foreign  mar- 
kets to  make  a  merchant  marine  profitable;  and 

IV.  Since  the  United  States  Navy  would  be  benefited  by  an 
increase  in  the  merchant  marine: 

Therefore,  the  United  States  Government  should  establish  by 
subsidation  a  Merchant  Marine. 

The  various  rules  for  the  construction  of  the  brief  may 
be  thus  presented  in  tabular  form : 

General  Rules 

1.      All  portions  of  the  brief  must  be  expressed  in  the  form 
of  complete  sentences. 


42  THE  BRIEF 

2.  The  coordination  and  subordination  of  the  several  prop- 
ositions contained  in  the  brief  are  indicated  by  the  vary- 
ing widths  of  the  margins  assigned  to  the  respective  proposi- 
tions and  by  symbols  indicating  the  logical  relations. 

3.  Each  step  of  subordination  should  be  expressed  by  a  suit- 
able connective. 

Special  Rules 

1.  The  Main  Issues,  constituting  the  fourth  principal  divi- 
sion of  the  argumentative  brief,  reappear  as  the  principal 
subdivisions  of  the  Main  Argument. 

2.  Each  subordinated  statement  should  present  a  clear  and 
definite  reason  establishing  the  contention  to  which  it  is 
appended. 

3.  The  use  of  "hence,"  "therefore,"  or  other  illative  connec- 
tive at  once  indicates  faulty  organization  of  material. 

4.  Double  notation  should  not  be  prefixed  to  a  statement  in 
a  brief. 

5.  When  coordinated  statements  in  a  brief  stand  in  contrast 
to  one  another,  or  in  any  antithetical  relation,  the  several 
related  propositions  constitute,  in  reality,  a  single  com- 
pound argument,  rather  than  a  succession  of  equivalent  con- 
tentions. In  such  cases  the  relation  may  be  fittingly  ex- 
pressed by  the  use  of  the  symbols  A,  A',  A",  1,  1',  1",  etc. 

6.  Statements  presented  in  proof  of  a  contention  should  be, 
in  turn,  supported  by  proof,  whenever  possible,  or  estab- 
lished by  the  citation  of  definite  authority. 

7.  One  should  not  cite  in  support  of  a  contention  a  statement 
that  is,  in  reality,  no  more  than  a  mere  repetition  of  the 
contention  under  discussion. 

8.  Each  proposition  contained  in  the  brief  should  consist  of 
but  a  single  statement. 

9.  Care  should  be  taken  not  to  introduce  into  the  body  of  a 
statement,  as  an  essential  part  of  it,  a  phrase  or  clause  that 
should  be  subordinated  as  proof. 

10.  Refutation  should  be  so  phrased  as  to  present  clearly  the 
contention  against  which  it  is  directed. 

11.  In  the  Conclusion  of  a  brief  it  is  customary  to  present  in 
order  the  main  contentions,  prefaced  by  the  word  "since," 
and  to  close  with  the  proposition  under  discussion. 


II 

A  LEGAL  BRIEF 

The  following  ^  is,  in  part,  a  brief  prepared  by  Mr.  Charles  E. 
Feirich,  a  member  of  the  class  of  1907  in  the  Chicago-Kent 
College  of  Law,  in  a  brief-making  contest  conducted  by  the 
American  Law  School  Review.  Out  of  a  large  number  of  briefs  sub- 
mitted by  students  in  various  law  schools,  this  was  selected  as 
the  best,  and  was  awarded  first  prize,  —  the  judges  being  Wil- 
liam T.  Spear,  Judge  of  the  Supreme  Court  of  Ohio;  Joseph  D. 
Moore,  Judge  of  the  Supreme  Court  of  Michigan;  and  Edwin  A. 
Jaggard,  Judge  of  the  Supreme  Court  of  Minnesota.  In  the  brief 
as  here  presented,  only  the  main  subdivisions  of  II  in  the  Argu- 
ment are  given  in  full,  as  the  general  rules  for  the  fornj  and  con- 
tents of  a  legal  brief  are  sufficiently  illustrated  in  the  other 
portions  retained. 

SUPREME  COURT  OF  IOWA 

DECEMBER  TERM.   1907 


George  C.  Smith, 
Plaintiff-Appellant, 
vs. 

Arthur  B.  Russell, 
Defendant- Appellee. 


No.  365. 


Preliminary  Statement 
This  is  an  appeal  by  George  C.  Smith  from  an  order  of 
the  District  Court  of  Oregon  County,  sustaining  a  de- 

1  From  The  Brief  and  the  Use  of  Law  Books,  by  William  M.  Lile, 
Hem-y  S.  Redfield,  Eugene  Wambaugh,  Edson  R.  Sunderland,  Alfred 
F.  Mason,  and  Roger  W.  Cooley.  By  kind  permission  of  the  publishers. 
The  West  Publishing  Company,  St.  Paul,  Minnesota. 


44  THE  BRIEF 

murrer  to  the  amended  petition  in  an  action  brought  by- 
said  George  C.  Smith,  on  a  note  executed  by  Arthur  B. 
Russell. 

Statement  of  Facts 

The  agreed  facts,  so  far  as  they  are  material  to  this  ap- 
peal, are  as  follows:  On  December  21,  1894,  the  defendant, 
Arthur  B.  Russell,  in  part  payment  of  a  debt  long  past 
due,  executed  and  delivered  to  George  C.  Smith  his  note 
for  $300,  due  in  two  years  from  the  date  thereof.  The  note 
was  payable  "  to  the  order  of  "  George  C.  Smith.  Smith 
lost  the  note,  and  it  was  found  by  R.  N.  Jackson,  who, 
however,  refused  to  give  it  up  on  demand.  On  May  15, 
1906,  Smith  brought  his  action  to  recover  the  amount 
due  on  the  note,  and,  as  an  excuse  for  his  inability  to  pro- 
duce the  note,  alleged  in  his  petition  that  it  was  "  wrong- 
fully held  by  a  third  person."  (Abs.  p.  2.)  The  defendant 
demurred.  (Abs.  p.  3.)  The  demurrer  was  sustained,  and 
on  October  10,  1906,  judgment  was  entered  on  the  de- 
murrer in  favor  of  defendant  Russell.    (Abs.  p.  4.) 

From  the  judgment  so  entered,  the  plaintiff,  on  Novem- 
ber 10,  1906,  perfected  his  appeal  to  this  court.  (Abs. 
p.  5.)  On  March  28, 1907,  this  court  rendered  its  decision, 
approving  the  ruling  of  the  district  court  sustaining  the 
demurrer,  but  remanding  the  case  for  new  trial,  with  leave 
to  the  plaintiff  to  amend  his  petition.  (Abs.  p.  6.)  The 
ten  years  prescribed  by  the  Statute  of  Limitations,  within 
which  an  action  could  be  brought  on  the  note,  expired 
December  21,  1906.  On  April  2,  1907,  plaintiff  filed  an 
amended  petition,  setting  forth  the  facts  in  connection  with 
the  loss  of  the  note,  the  demand  therefor  on  Jackson,  and 
Jackson's  refusal  to  surrender  it,  and  offered  to  indemnify 
the  defendant  Russell  against  any  claim  on  account  of  the 
note  in  the  hands  of  another  person.  (Abs.  p.  7.)  Defend- 
ant demurred  to  the  amended  petition  on  the  ground  that 


A  LEGAL  BRIEF  45 

the  debt  was  barred  by  the  Statute  of  Limitations.  (Abs. 
p.  8.)  The  demurrer  being  sustained,  the  plaintiff  ap- 
peals. 

Specifications  of  Error 

The  court  erred  in  sustaining  the  demurrer  to  plaintiff's 
amended  petition. 

Points 

I.  The  defense  of  the  Statute  of  Limitations  must  be 
specially  pleaded,  and  cannot  be  availed  of  by  demurrer, 
in  an  action  at  law,  even  though  it  appears  on  the  face  of 
the  petition  that  the  limitation  prescribed  by  the  statute 
has  expired. 

II.  Where  an  amendment  does  not  set  up  a  new  cause 
of  action,  or  bring  in  any  new  parties,  the  running  of  the 
Statute  of  Limitations  is  arrested  at  the  date  of  filing  the 
original  pleadings. 

III.  The  Statute  of  Limitations  is  suspended  during  the 
pendency  of  an  appeal. 

Argument 

I 

The  defense  of  the  Statute  of  Limitations  must  be  specially 
pleaded,  and  cannot  be  availed  of  by  demurrer  in  an  action  at 
law,  even  though  it  appears  on  the  face  of  the  declaration  that 
the  limitation  prescribed  by  the  Statute  of  Limitations  has 
expired. 

The  defense  of  the  Statute  of  Limitations  was  permitted 
by  the  court  below  to  be  interposed  by  a  demurrer  filed  by 
the  defendant,  which  demurrer  was  sustained.  This  was 
error,  because  in  an  action  at  law  the  Statute  of  Limitations 
must  be  pleaded  specially  if  the  defendant  desires  to  avail 
himself  of  that  defense. 


46  THE  BRIEF 

"In  actions  at  law,  as  contradistinguished  from  actions 
under  the  code,  it  has  always  been  the  established  rule  that 
if  the  defendant  desires  to  avail  himself  of  the  Statute  of 
Limitations  as  a  bar  to  the  demand  in  suit,  he  must  plead 
the  defense.  He  cannot  demur  to  the  declaration,  even  where 
it  appears  on  its  face  that  the  limitation  prescribed  by  the 
statute  has  expired,  for  the  principal  reason  that  thereby 
the  plaintiff  would  be  deprived  of  the  opportunity  of  reply- 
ing that  the  case  was  within  some  of  the  exceptions  to  the 
statute,  or  any  other  matter  which  would  prevent  the  bar 
from  attaching." 


13  Enc.  PL  &  Pr.  200,  citing 

Condon  v.  Enger,  113  Ala.  233,  21  South.  227; 

Huss  V.  Central  R.,  etc.,  Co.,  66  Ala.  472; 

Smith  V.  Richmond,  19  Cal.  476; 

Bowman  v.  Mallory,  14  Ind.  424; 

Matlock  V.  Todd,  25  Ind.  128; 

Sleeth  V.  Murphy,  1  Morris  (Iowa)  321,  41  Am.  Dec. 

232; 
Zane  v.  Zane,  5  Kan.  134; 
Hines  v.  Potts,  56  Miss.  352; 
McNair  v,  Lott,  25  Mo.  182; 
Allen  i).  Word,  6  Humph.  (Tenn.)  284; 
Chicago  City  Ry.  Co.  v.  Cooney,  196  111.  466,  63  N.E. 

1029; 
Gunton  v.  Hughes,  181  111.  132,  54  N.E.  895; 
Thomas  v.  Morgan,  96  111.  App.  629; 
Wall,  Adm'x.,  v.  C.  &  O.  R.R.  Co.,  200  HI.  66,  65  N.E. 

632; 
Renackowsky  v.  Water  Com'rs.,  122  Mich.  613, 81  N.W. 

581; 
Norton  v.  Kumpe,  121  Ala.  446,  25  South.  841; 
Huntville  v.  Ewing,  116  Ala.  576,  22  South.  984; 
Barclay  v.  Barclay,  206  Pa.  St.  307,  55  Atl.  985. 


A  few  extracts  are  made  from  the  opinions  of  the  courts 
in  some  of  the  cases  above  cited,  which  will  suflB.ce  to  show 
the  rule  of  law  on  this  point. 


A  LEGAL  BRIEF  47 

In  Wall,  Adm'x.,  v.  C.  &  O.  R.R.  Co.,  200  111.  66,  65 
N.E.  632,  the  court  said: 


**From  the  face  of  the  declaration  it  appears  that  more 
than  two  years  elapsed  from  the  time  of  the  injury  to  the 
bringing  of  the  suit,  and  it  is  insisted  by  defendant  in  error 
that  therefore  the  action  could  not  be  sustained,  and  hence 
the  defense  of  the  Statute  of  Limitations  could  be  made  by 
demurrer.  Mainly  on  this  ground  it  is  insisted  that  the  trial 
court  properly  sustained  the  demurrer.  In  equity,  where  it  ap- 
pears on  the  face  of  the  bill  that  the  cause  of  action  is  barred 
by  laches  or  the  Statute  of  Limitations,  the  defect  may  be 
reached  by  demurrer  to  the  bill.  But  the  rule  is  otherwise 
in  common  law  pleading.  The  defendant  cannot  demur  to 
a  declaration  even  where  it  appears  on  its  face  that  the 
limitation  prescribed  by  the  statute  has  expired,  because 
plaintiff  would  be  thus  deprived  of  the  opportunity  of  reply- 
ing and  pleading  any  matter  which  would  prevent  the  bar 
from  attaching.  The  defendant  must  plead  the  statute  if 
he  wishes  to  avail  himself  of  it." 


In  Thomas  v.  Morgan,  96  111.  App.  629,  the  Appellate 
Court  of  Illinois  discusses  this  question  at  length,  citing 
many  authorities  from  various  jurisdictions.  The  court 
remanded  the  case  for  the  error  of  the  trial  court  in  sus- 
taining a  demurrer  to  the  declaration  based  on  the  Statute 
of  Limitations,  although  the  declaration  showed  on  its 
face  that  the  time  allowed  by  the  Statute  of  Limitations 
had  expired. 

In  Hines  v.  Potts,  5Q  Miss.  346,  362,  the  court  said: 


"It  is  urged  that  this  case  is  barred  by  the  Statute  of 
Limitations.  We  cannot  express  an  opinion  as  to  this,  be- 
cause the  bar  of  the  Statute  of  Limitations  cannot  be  availed 
of  by  a  demurrer  to  the  declaration,  even  though  the  cause 
of  action  set  forth  may  appear  to  be  barred.  The  Statute  of 
Limitations  must  be  pleaded,  so  that  the  plaintiff  may,  if 
he  can,  avoid  the  bar  by  replying  facts  which  prevent  it.'* 


48  THE  BRIEF 

In  Allen  v.  Word,  6  Humph.  (Tenn.)  284,  the  court  said: 

"The  Statute  of  Limitations  in  a  suit  at  law  must  be 
pleaded,  and  this  whether  the  cause  of  action  as  stated  ap- 
pears to  be  barred  or  not;  because  the  plaintiff  may  reply 
and  prove  a  subsequent  promise  to  pay  the  debt." 

In  Sleeth  v.  Murphy,  1  Morris  (Iowa)  321  (2d  edition 
or  reprint,  vol.  1,  p.  422),  41  Am.  Dec.  232,  in  a  Per  Curiam 
opinion  it  is  said: 

"We  feel  controlled  in  this  matter  by  the  decisions  of 
other  courts  on  like  statutes.  It  has  been  of  late  years  in- 
variably held  that  a  Statute  of  Limitations  must  be  pleaded; 
that  a  demurrer  will  not  lie,  although  the  lapse  of  a  sufficient 
time  between  the  accruing  of  the  action  and  the  commence- 
ment of  the  suit  should  appear  from  the  face  of  the  declara- 
tion." 

In  Matlock  v.  Todd,  25  Ind.  128,  133,  speaking  of  the 
Statute  of  Limitations,  the  court  said: 

"But  we  do  not  decide  the  question,  for  the  reason  that 
it  is  not  properly  before  us.  It  is  raised  on  a  demurrer  to  the 
complaint,  and  it  has  been  held  by  this  court,  that  in  suits 
at  law,  to  make  the  statute  availing,  it  should  be  pleaded." 

Extracts  might  be  made  from  the  opinions  in  the  other 
cases  cited  to  the  same  effect,  but  the  foregoing  clearly 
show  that  the  rule  is  based  on  reason  and  appears  to  be 
invariably  enforced  by  courts  of  the  last  resort.  If  the 
defendant  in  the  case  at  bar  desired  to  avail  himself  of 
this  defense,  he  should  have  pleaded  it  in  bar  instead  of 
demurring  to  the  declaration,  for  by  doing  the  former  the 
plaintiff  would  have  had  the  right  to  plead  any  matter 
which  would  take  the  case  out  of  the  Statute  of  Limitations. 

It  is,  therefore,  urged  that  the  decision  of  the  trial 
court  should  be  reversed,  because  of  the  error  of  the  trial 
court  in  allowing  the  defense  of  the  Statute  of  Limitations 
to  be  raised  by  a  demurrer. 


A  LEGAL  BRIEF  49 

II 

Where  an  amendment  does  not  set  up  a  new  cause  of 
action,  or  bring  in  any  new  parties,  the  running  of  the  Statute 
of  Limitations  is  arrested  at  the  date  of  filing  the  original 
pleading. 

(A)  An  appellate  court  has  power,  in  its  discretion,  to 
direct  the  trial  court  to  allow  an  amendment  to  a  declaration.^ 

(B)  An  appellate  court  will,  in  a  meritorious  case,  allow 
an  amendment  to  the  declaration  for  the  express  purpose  of 
saving  the  cause  of  action  from  the  bar  of  the  Statute  of 
Limitations.^ 

(C)  The  amendment  introduced  no  new  cause  of  action; 
hence  it  relates  back  to  the  time  of  filing  the  original  petition, 
and  the  running  of  the  Statute  of  Limitations  was  arrested 
at  that  date.^ 

(D)  The  fact  that  the  Supreme  Court  on  the  previous  appeal 
sustained  the  finding  of  the  lower  court  does  not  affect  the 
question,  because  the  Supreme  Court  directed  the  trial  court 
to  allow  an  amendment  to  be  filed,  which  was  done.^ 

m 

The  Statute  of  Limitations  is  suspended  during  the  pend- 
ency of  an  appeal. 

While  many,  if  not  all,  of  the  States  in  the  Union  have 
passed  statutes  giving  the  party  who  has  his  judgment 
reversed  in  an  appellate  court  a  specified  time  within 
which  to  commence  a  new  action,  so  as  to  avoid  the  bar 
of  the  general  Statute  of  Limitations,  it  appears  from  the 
following  extracts  from  decisions  of  the  supreme  courts  of 
various  States,  that  the  general  rule  is  that  the  Statute 
of  Limitations  is  suspended  during  the  pendency  of  an 
appeal  from  the  judgment  of  the  trial  court: 

^  The  extended  citations  and  proof  of  these  contentions,  presented 
in  the  original  brief,  are  here  omitted  for  considerations  of  space. 


50  THE  BRIEF 

In  Kirsch  v.  Kirsch,  113  Cal.  56,  45  Pac.  164,  an  action 
to  recover  the  possession  of  real  property,  the  court  said: 

"The  judgment  entered  in  March,  1888,  was  appealed 
from  by  Mrs.  Kirsch.  In  1890,  less  than  three  years  before 
the  application  for  the  order  here  appealed  from,  that 
judgment  became  final  by  affirmance  in  this  court.  The 
action  was  then  pending  until  June,  1890,  and,  while  it 
was  pending,  she  could  not  acquire  title  by  adverse  posses- 
sion, since,  during  the  pendency  of  the  appeal,  all  rights 
under  the  judgment  were  suspended." 

In  Fields  v.  Austin  (Tex.  Civ.  App.),  30  S.W.  386,  an 
action  by  the  guardian  of  minors  to  have  land  of  their 
deceased  father  set  aside  to  them,  the  trial  court,  in  its 
findings  of  law,  which  were  approved  by  the  Court  of 
Civil  Appeals  of  Texas,  said: 

"I  hold  that  appeal  from  the  judgment  of  the  County 
Court  suspended  the  right  of  plaintiff  to  recover  possession 
of  the  land  until  the  case  was  reversed  by  the  judgment 
of  the  Supreme  Court,  and  that  limitation  had  not  begun 
to  run  until  the  rendition  of  the  judgment  of  the  Supreme 
Court." 

In  Clark  v.  Bay  Circuit  Judge,  62  Mich.  355,  28  N.W. 
894,  an  application  for  a  writ  of  mandamus  recalling  the 
execution  on  a  judgment  rendered  in  an  action  of  eject- 
ment, the  court  said: 

"The  question  now  arises  as  to  when  the  one-year  limit 
prescribed  by  the  statute  begins  to  run.  The  relator  claims 
it  commenced  at  the  date  of  the  entry  of  the  judgment, 
April  15,  1884,  while  the  plaintiffs  insist  that  the  time  was 
held  in  abeyance  while  the  cause  was  removed  to  and  pend- 
ing in  this  court,  and  until  the  judgment  of  this  court  af- 
firming the  judgment  below,  which  was  of  date  April  15, 
1885.  It  seems  to  me  that  the  judgment  intended  by  the 
statute  is  the  final  judgment  in  this  case  until  April  15, 
1885.  ...  I  think  the  time  in  this  case  should  run  from  the 
fifteenth  of  April,  1885." 


A  LEGAL  BRIEF  51 

In  Miller  v.  Gist,  91  Tex.  335,  43  S.W.  263,  it  was  held 
that  during  the  time  of  an  appeal  the  Statute  of  Limita- 
tions is  suspended  but  not  vacated. 

See  also: 

Nix  V.  Draughton,  54  Ark.  340,  15  S.W.  893; 

Hesters  v.  Coats,  32  Ga.  448; 

Williams  v.  Banks,  19  Md.  22; 

Chouteau  v.  Rowse,  90  Mo.  191,  2  S.W.  209; 

Martel  v.  Somers,  26  Tex.  551. 

This  rule  is  based  upon  the  soundest  reason.  It  is  ele- 
mentary that  when  the  Statute  of  Limitations  has  once 
commenced  to  run  it  will  not  ordinarily  be  stopped,  except 
by  the  bringing  of  a  suit  in  a  court  of  competent  jurisdic- 
tion. But  when  this  suit  is  brought,  what  argument  can  be 
advanced  for  holding  the  Statute  of  Limitations  in  abey- 
ance, during  the  trial  of  the  case  in  the  lower  court,  and  then 
allowing  it  to  run  on  again  during  the  time  the  case  is  under 
consideration  by  the  Appellate  Court  .^  Yet  this  would  be  the 
effect  of  holding  that  this  case  is  barred  by  the  Statute  of 
Limitations.  The  plaintiff  in  this  case  originally  had  six 
years  within  which  to  bring  his  action  on  the  promissory 
note,  which  six  years  expired  September  4,  1906.  The  first 
petition  by  plaintiff's  attorney  was  filed  May  5, 1906,  about 
four  months  before  the  time  allowed  by  the  Statute  of 
Limitations  expired.  The  decision  of  this  court  on  the  first 
appeal  was  rendered  October  3,  1906.  The  filing  of  suit  by 
plaintiff  on  May  5,  1906,  certainly  stopped  the  running 
of  the  Statute  of  Limitations.  The  case  was  then  pending 
on  trial  and  appeal  from  May  5,  1906,  to  October  3,  1906, 
or  nearly  six  months.  Now,  if  the  Statute  of  Limitations 
is  suspended  during  the  pendency  of  an  appeal,  as  the  fore- 
going cases  unite  in  holding,  these  six  months  during  which 
the  case  was  pending  on  appeal  must  be  excluded  in  com- 
puting the  time  during  which  the  Statute  of  Limitations 
actually  did  run.   Since,  therefore,  the  plaintijff  had  about 


5£  THE  BRIEF 

four  months  before  his  claim  would  be  barred  by  the  Stat- 
ute of  Limitations,  when  he  filed  his  original  petition,  and 
the  six  months  immediately  following  were  consumed  by 
the  appeal  of  the  case,  it  follows  clearly  that  when  the 
judgment  of  the  Supreme  Court  was  rendered,  October  3, 
1906,  he  still  had  about  four  months  within  which  to  sue, 
even  if  no  amendment  or  new  trial  had  been  granted  him, 
for  the  Statute  of  Limitations  was  suspended  during  the 
time  the  appeal  was  pending.  In  other  words,  so  far  as  the 
Statute  of  Limitations  is  concerned,  if  plaintiff  filed  his 
suit  within  the  time  allowed  by  the  statute,  and  an  appeal 
was  taken  from  the  judgment  of  the  trial  court,  he  was 
entitled  to  be  placed  in  statu  quo  after  the  decision  of  the 
Supreme  Court,  because  the  running  of  the  statute  is  sus- 
pended during  the  time  occupied  by  appellate  proceed- 
ings. And  this  is  indeed  a  just,  as  well  as  a  necessary, 
rule.  Very  few  cases  are  appealed  which  would  not  be 
barred  by  the  Statute  of  Limitations  in  the  event  of  a  re- 
versal by  the  Supreme  Court,  if  the  decision  of  the  lower 
court  in  the  case  at  bar  be  followed.  A  plaintiff  might  have 
an  eminently  just  claim,  but,  by  reason  of  an  erroneous 
decision  of  the  trial  court,  he  might  easily  be  deprived  of  it 
altogether,  as  there  would  be  absolutely  no  advantage  to 
be  gained  by  appealing  the  case  to  a  higher  court,  where 
justice  might  be  done,  because,  even  if  such  higher  court 
decided  in  his  favor,  when  he  reentered  the  trial  court  he 
would  find  his  claim  barred  by  the  Statute  of  Limitations. 
Thus,  instead  of  the  decision  of  the  Supreme  Court  be- 
ing superior  to  that  of  the  trial  court,  the  order  is  re- 
versed and  for  all  practical  purposes  the  decision  of  the  trial 
court  is  final,  inasmuch  as  from  the  date  of  that  decision 
the  Statute  of  Limitations  would  again  commence  to  run 
and  would  continue  to  nm,  notwithstanding  the  fact  that 
an  appeal  was  taken  to  the  Supreme  Court.  But  it  is 
quite  unnecessary  to  go  further  to  show  what  great  hard- 


A  LEGAL  BRIEF  53 

ship  and  confusion  would  result  from  so  obviously  wrong 
doctrine.  Immediately  upon  the  decision  of  the  Supreme 
Court  being  handed  down  in  this  case,  plaintiff,  in  accord- 
ance with  that  decision,  filed  an  amendment  to  his  petition 
and  began  a  new  trial,  although  he  really  had  about  four 
months  still  remaining  before  his  cause  of  action  would 
have  been  barred  by  the  Statute  of  Limitations.  It  is, 
therefore,  earnestly  contended  that  the  lower  court  was  in 
error  in  holding  that  the  plaintiff's  cause  of  action  was 
barred,  and  it  is  believed  that  this  court  will  not  do  other- 
wise than  to  reverse  the  judgment  of  the  lower  court  and 
remand  the  case  with  directions. 


Conclusion 

In  conclusion,  the  attention  of  the  court  is  called  to  the 
three  separate  grounds  hereinbefore  laid  down,  any  one 
of  which,  it  is  believed,  will  be  sufficient  to  secure  a  re- 
versal of  the  decision  of  the  lower  court.  In  brief,  these 
grounds  are: 

I.  The  decision  of  the  lower  court  should  be  reversed, 
because  it  was  error  to  allow  the  defense  of  the  Statute  of 
Limitations  to  be  raised  by  demurrer,  the  rule  of  law  being 
that  that  defense  must  be  specially  pleaded  if  a  party 
desires  to  avail  himself  of  it. 

II.  The  decision  of  the  lower  court  should  be  reversed, 
because  the  amendment  filed  to  the  original  petition  did 
not  set  up  a  new  cause  of  action,  and  the  rule  of  law  in 
such  an  amendment  is  that  the  running  of  the  Statute 
of  Limitations  is  arrested  at  the  date  of  filing  the  original 
pleading. 

III.  The  decision  of  the  lower  court  should  be  reversed, 
because,  at  the  date  of  taking  an  appeal  from  the  first  de- 
cision of  the  trial  court  in  this  case,  holding  that  plaintiff's 
petition  stated  no  cause  of  action,  plaintiff  still  had  about 


54  THE  BRIEF 

four  fiionths,  so  far  as  the  Statute  of  Limitations  was  con- 
cerned, within  which  to  bring  a  new  action;  and  the  law  is 
that  the  running  of  the  Statute  of  Limitations  is  suspended 
during  the  pendency  of  an  appeal.  Therefore  the  four 
months  above  mentioned  still  remained  to  plaintiff  within 
which  to  bring  a  suit,  after  the  decision  of  the  Supreme 
Court,  sustaining  the  holding  of  the  court  below. 

In  addition  to  these  grounds,  the  attention  of  the  court 
is  called  to  the  proposition  that  if  an  appellate  court  decides 
that  plaintiff's  original  petition  states  no  cause  of  action, 
but,  believing  that  plaintiff  may  have  a  meritorious  cause 
of  action,  gives  plaintiff  the  right  to  amend  his  petition 
and  a  new  trial,  such  appellate  court  will  not  subsequently 
sustain  a  ruling  of  the  lower  court  that  the  amended 
petition  is  barred  by  the  Statute  of  Limitations,  where  the 
original  petition  was  not  barred,  for  to  do  so  would  be  to 
deprive  of  efficacy  its  own  previous  ruling.  On  the  previous 
appeal  of  this  case,  the  Supreme  Court  gave  plaintiff  the 
right  to  amend  his  petition  and  a  new  trial.  Appellee  is 
now  before  the  bar  of  this  court,  asking  that  it  render 
void  and  of  no  effect  its  own  previous  ruling  in  the  case.  It 
seems  reasonable  to  assume  that  plaintiff  was  given  the 
right  to  amend  his  petition  in  order  to  avoid  the  necessity 
of  bringing  a  new  suit.  If  this  had  not  been  intended,  the 
court  would  undoubtedly  have  stopped  when  it  affirmed 
the  finding  of  the  lower  court,  and  plaintiff  would  have 
been  compelled  to  seek  his  remedy  as  best  he  could,  pos- 
sibly by  a  new  suit.  Instead  of  doing  this,  however,  the 
Supreme  Court  went  further  and  granted  plaintiff  the  right 
to  amend  his  petition  and  a  new  trial.  When  this  right  was 
granted  by  the  Supreme  Court  it  was  obligatory  upon  the 
court  below  to  see  that  it  was  not  defeated.  Both  the 
letter  and  the  spirit  of  the  decision  of  the  Supreme  Court 
were  disregarded  by  the  trial  court  in  holding  that  plaintiff's 
cause  of  action  was  barred  by  the  Statute  of  Limitations. 


A  LEGAL  BRIEF  55 

Plaintiff  was  not  given  a  new  trial,  but  was  thrown*  out  of 
the  lower  court  on  the  ground  that  his  amended  petition 
was  barred  by  the  Statute  of  Limitations.  This,  in  effect, 
deprived  him  of  the  right  to  amend  his  petition,  for,  if 
his  amendment  had  been  properly  allowed,  it  would  have 
dated  back  to  the  commencement  of  the  original  suit, 
which  was  brought  within  the  time  prescribed  by  the 
Statute.  If  the  cause  of  action  was  barred  by  the  Statute 
of  Limitations  when  the  Supreme  Court  directed  that 
plaintiff  have  another  trial,  the  question  may  be  asked: 
"  Why,  then,  did  not  the  Supreme  Court  simply  affirm 
the  judgment  for  the  defendant?  "  Surely  no  object  of 
justice  could  be  furthered  by  having  plaintiff  amend  his 
petition  and  begin  a  second  suit,  if  his  cause  of  action  was 
already  barred  by  the  Statute  of  Limitations.  In  short, 
since  the  Supreme  Court  directed  that  plaintiff  have  the 
right  to  amend  his  petition  and  a  new  trial,  it  will  see  that 
such  mandate  is  carried  out  by  the  lower  court.  The 
Supreme  Court  will  not  sustain  any  holding  of  the  lower 
court  by  which  justice  is  defeated  or  its  order  to  the  lower 
court  is  avoided  or  altogether  disobeyed.  To  do  so  would 
be  to  relinquish  its  own  authority  in  favor  of  the  lower 
court.  Plaintiff,  immediately  upon  ascertaining  the  de- 
cision of  the  Supreme  Court,  amended  his  petition  and 
began  a  second  trial,  and,  under  these  circumstances,  he 
is  entitled  to  have  a  trial  upon  the  merits  of  his  cause  of 
action. 

It  may  be  that  defendant  prefers  to  have  this  case  de- 
cided upon  some  theory  which  prevents  the  real  merits  of 
the  case  from  being  considered;  but  this  is  not  at  all  in 
accord  with  the  tendency  of  great  modern  jurists,  who  use 
every  endeavor  to  see  that  justice  is  done  upon  the  merits 
of  each  individual  case,  and  that  no  one  may  lose  a  right- 
eous cause  of  action  through  a  mere  inadvertence,  not  in 
any  way  affecting  the  substantial  justice  of  the  case.    In 


56  THE  BRIEF 

the  language  of  Circuit  Judge  Caldwell,  in  McDonald  v. 
State  of  Nebraska,  supra: 

"There  are  in  the  history  of  the  jurisprudence  of  every 
country  certain  epochs  which  mark  the  beginning  of  distinct 
trains  of  legal  ideas  and  judicial  conceptions  of  justice.  There 
was  a  time  in  England  and  in  this  country  when  the  funda- 
mental principles  of  right  and  justice,  which  courts  were 
created  to  uphold  and  enforce,  were  esteemed  of  minor  im- 
portance, compared  to  the  quibbles,  refinements,  and  tech- 
nicalities of  special  pleading.  In  that  period,  the  great  fun- 
damentals of  the  law  seemed  little,  aiid  the  trifling  things 
great.  The  courts  were  not  concerned  with  the  merits  of  a 
case,  but  with  the  mode  of  starting  it.  And  they  adopted 
so  many  subtile,  artificial,  and  technical  rules  governing  the 
statement  of  actions  and  defenses  —  for  the  entire  system 
of  special  pleading  was  built  up  by  the  judges  without  the 
sanction  of  any  written  law  —  that  in  many  cases  the  whole 
contention  was  whether  these  rules  had  been  observed,  and 
the  merits  of  the  case  were  never  reached,  and  frequently 
never  thought  of.  Happily  for  mankind,  and  for  the  law 
itself,  that  epoch  is  past  in  England  and  in  this  country, 
and  we  now  have  an  epoch  in  which  substance  is  more  con- 
sidered than  form,  in  which  the  justice  and  right  of  the  case 
determines  its  decision,  and  not  some  technical  error  or 
mistake  in  the  pleadings.  In  England  to-day  the  amend- 
ment complained  of  in  this  case  would  be  allowed  quite  as 
a  matter  of  course,  and  the  suggestion  that  defendant  had 
gained  some  advantage  by  the  mistake  would  not  be  enter- 
tained for  a  moment.  There,  as  here,  every  error  or  mistake 
in  the  pleadings  which  does  not  afiFect  the  substantial  rights 
of  the  adverse  party  may  be  cured  by  amendment;  and 
what  is  meant  by  substantial  right  is  a  right  going  to  the 
actual  merits  of  the  case.  Such  right  is  not  acquired  by  a 
mistake  or  error  in  pleadings  which  has  not  misled  the  other 
party  to  his  prejudice.  And  the  prejudice  must  be  actual 
and  irreparable,  and  not  merely  theoretical.  At  this  day,  the 
party  who  seeks  to  profit  by  an  error  or  mistake  in  pleading 
must  be  able  to  invoke  the  principle  upon  which  the  law 
of  estoppel  is  founded.  And  the  emotion  of  surprise,  once 
so  assiduously  cultivated  by  lawyers,  has  lost  its  virtue. 


A  LEGAL  BRIEF  57 

Extreme  sensitiveness  to  that  emotion  no  longer  avails  to 
turn  a  suitor  out  of  court,  or  to  delay  justice." 

It  is,  therefore,  most  earnestly  urged  by  counsel  for 
appellant  that  in  the  light  of  the  decisions  above  cited, 
and  the  manifest  error  of  the  lower  court,  both  in  allowing 
the  defense  to  be  set  up  by  demurrer,  and  in  holding  that 
the  cause  of  action  was  barred  by  the  Statute  of  Limita- 
tions, this  court  will  reverse  the  case  with  such  directions 
as  justice  and  the  law  may  require,  and  give  the  appellant 
the  benefit  of  a  trial  upon  the  real  merits  of  the  case. 
Respectfully  submitted, 

Charles  E.  Feirich, 

Attorney  for  Appellant. 


Ill 

AN  ARGUMENTATIVE  BRIEF 

WILLIAMS  COLLEGE 

Brief  of  an  Argument  on 

THE  SOLUTION  OF  THE  LIQUOR  PROBLEM 

WALTER  MILLS  HINKLE,'14i 

June  10,  191i 

^eliminary  Introduction 

This  is  a  brief  of  an  argument  supporting  the  proposi- 
tion thatlthe  elimination  of  private  profit  will  afford  the 
best  solution  of  the  liquor  problem. 

Main  Introduction 

I.  The  Origin  of  the  Question :  The  liquor  question  is  just 
now  exciting  great  interest  throughout  the  United 
States:  for 

A.  At  present  46,000,000  people  are  living  in 
prohibition  territory.  (U.  S.  B.A.  Yearbook,^ 
1913;  p.  249.) 

B.  A  constitutional  amendment  to  prohibit, 
throughout  the  United  States,  the  manufac- 
ture, sale,  and  distribution  of  alcoholic  bev- 
erages has  been  recently  introduced  into  Con- 
gress, and  is  being  agitated  throughout  the 
country.    (N.  Y.  Tribune,  June  10, 1914;  p.  1.) 

*  By  the  kind  permission  of  Mr.  W.  M.  Hinkle. 

*  U.S.  Barkeepers'  Association  Yearbook. 


AN  ARGUMENTATIVE  BRIEF  59 

C.  At  every  election  in  those  States  in  which  there 
are  local  option  laws  there  is  a  bitter  fight  in 
each  district  between  the  supporters  of  pro- 
hibition (no  license;  "  Dry's  ")  and  the  op' 
ponents  of  prohibition  (license;  "  Wet's  "). 

D.  Between  1907  and  1914  a  "  temperance  wave  *' 
essentially  similar  to  that  of  1850-1860,  has 
swept  over  the  country. 

II.  The  History  of  the  Question:  Since  colonial  days 
there  have  been  various  attempts  to  solve  the 
liquor  problem:  e.g., 

A.  From  1635  to  1770  various  Colonies  passed 
laws  to  prevent  the  sale  of  distilled  spirits. 
( Textbook  of  True  Temperance,  1911;  pp.  38- 
40.) 

B.  From  1846  to  1860  a  great  "  temperance 
wave  "  passed  over  the  country v  and  during 
that  period  fourteen  States  adopted  pro- 
hibition. (Joseph  Debar,  Prohibition,  Its  Re- 
lation to  Good  Government;  pp.  7-17.) 

C.  The  following  organizations  have  been  founded 
for  the  purpose  of  combating  the  liquor  prob- 
lem: viz.: 

The    Woman's    Christian    Temperance 

Union  (1874); 
The    National     Temperance      Society 

(1865); 
The  Church  Temperance  Society  (1881) ; 
The  Anti-Saloon  League  (1895) ; 
The  Catholic  Total  Abstinence  Union; 
The  Intercollegiate  Prohibition  Associa- 
tion; 
The  National  Prohibition  Party. 


60  THE  BRIEF  \ 

III.  The  Definition  of  Terms :  For  the  purposes  of  the 
ensuing  discussion  the  terms  are  hmited  and  the 
question  restricted  as  follows: 

A.  The  term  "  elimination  of  private  profit  "  is 
taken  to  mean  that,  to  all  intents  and  pur- 
poses, the  government,  through  suitable  agen- 
cies, shall  take  control  of  the  liquor  traflSc. 

B.  This  control  of  the  liquor  traffic  shall  be  limited 
to  the  control  of  the  retail  distribution  of 
liquor. 

C.  The  term  "government,"  as  here  used,  is  in- 
terpreted to  indicate  the  municipality,  incor- 
porated town  or  township,  county,  or  other 

'  governmental  xmit  by  which  licenses  are  issued 
under  the  present  laws. 

D.  The  restatement  of  the  question  will,  then, 
read:  The  control  of  the  retail  distribution  of 
liquors  by  the  municipality,  county,  ot^piher 
governmental  unit  by'  which  licens^^re  isstLed 
under  tM  present  laws  ajffhrds  the  best  solution 
of  the  liquor  problem. 

IV.  Waived  and  admitted  matter : 

A.  At  the  present  time  (1914)  there  are  ten 
States  under  the  system  of  prohibition ;  twenty- 
three  under  local  option  and  license  laws;  and 
fifteen  under  license  laws  but  without  local 
option.    (World  Almanac,  1914;  p.  248.) 

B.  In  the  territory  of  the  United  States  where 
there  is  no  prohibition,  liquor  can  be  sold 
only  by  a  license  granted  under  state  law  by 
the  county,  municipality,  incorporated  town 
or  township.    (World  Almanac  :  as  above.) 

C.  The  number  of  licenses  that  can  be  issued  in 
proportion  to  the  population  is  determined 


AN  ARGUMENTATIVE  BRIEF    d 


61 


D. 


absolutely  by  the  State,  which  has  full  author- 
ity over  the  liquor  traffic.  {World  Almanac : 
as  above.) 

Licenses  are  taxed  in  every  State  that  per- 
mits their  issue,  the  tax  varying  from  $100 
to  $1500.  (World  Almanac :  as  above.) 


V.  Clash  of  Opinion: 

A.  None  of  the  methods  here- 
tofore advocated  have  been . 
adequate  to  solve  the  liquor 
problem:  for 


1.  Prohibition  has  failed 
to  solve  it. 

2.  Local  option  has  failed 
to  solve  it. 


3.  The  license  system 
with  regulation  has 
failed  to  solve  it. 


B.  The  methods  heretofore 
used  in  the  attempt  to  solve 
the  liquor  problem  are 
bound  in  the  future  to  re- 
peat their  failures  of  the 
past. 

C.  The  solution  offered  by  the 
affirmative  will  furnish  a 
fundamentally  sound  and 
intelligent  basis  for  dealing 
with  the  liquor  problem :  for 

1.  Governmental  au- 
thorities will  be  able  to 
take  care  of  a  definite 
and  real  social  need, 
without  that  need's 
being  debauched  by 
greed  of  gain. 


B. 


The  methods  of  handling 
the  liquor  problem,  hereto- 
fore advocated,  have  al- 
ready partially  solved  the 
problem:  for 

1.  Prohibition  has  been 
extended  over  many 
States. 

2.  Local  option  laws  are 
in  successful  operation 
in  ma,ny  States. 

3.  In  license  States  strict 
laws  regulate  the  sale 
and  distribution  of 
liquor. 

The  methods  heretofore 
used  will  tend  to  advance 
even  farther  the  solution 
of  the  liquor  problem,  as 
they  are  more  and  more 
widely  extended. 

The  solution  offered  by  the 
affirmative  is  inadequate 
to  deal  with  the  liquor 
problem:  for 


1.  The  government  can- 
not supply  a  social 
need  as  well  as  can 
private  enterprise. 


62  THE  BRIEF 

2.  Direct   governmental  2.  Governmentafl     con- 
control  of  the  distri-  trol  means  increased 
bution  of  liquor  will                    opportunity  for  graft, 
be   of    great    advan- 
tage to  the  commu- 
nity. 

3.  The  solution  offered  3.  The  solution  offered 
by  the  affirmative  is  by  the  affirmative  is 
eminently  practical.                      impractical  and  inex- 
pedient. 

^  The  Issues 

I.  Are  the-  methods  heretofore  advocated  adequate 

to  solve  the  Hquor  problem? 
II.  Will  these  same  methods  avail  to  solve  the  prob- 
lem in  the  future? 
III.  Is  the  solution  offered  by  the  affirmative  adequate 
to  solve  the  liquor  problem? 

The  Main  Argument 

\  I.  None  of  the  methods  heretofore  advocated  have 

been  adequate  to  solve  the  liquor  problem:  for 
A<A.  Prohibition  has  utterly  failed  to  accomplish 
this  end:  for 

1.  Its  gains  have  proved  fitful  and  erratic: 
for 

a.  Of  the  fourteen  States  (Connecti- 
cut, Delaware,  Illinois,  Indiana, 
Maine,  Maryland,  Massachusetts, 
Michigan,  Nebraska,  New  Hamp- 
shire, New  York,  Ohio,  Rhode 
Island,  Vermont)  that  adopted  pro- 
hibition during  the  ten  years  fol- 
lowing 1860,  all  save  one  (Maine) 
have  given  it  up.  (Joseph  Debar: 
Prohibition,  Its  Relation  to  Good 
Government;  pp.  8-15.) 


V 


AN  ARGUMENTATIVE  BRIEF  63 

h.  Three  States  (Alabama,  Iowa, 
South  Dakota)  that  have  adopted 
prohibition  since  the  sixth  decade 
of  the  nineteenth  century  have 
given  it  up.  {Id.) 
c.  Of  the  ten  States  that  at  present 
(1914)  have  prohibition,  seven  (Ar- 
kansas, Georgia,  Mississippi,  North 
Carohna,  Oklahoma,  Tennessee, 
West  Virginia)  have  adopted  it 
since  1907;  two  (Kansas  and  North 
Dakota)  adopted  it  during  the  80's; 
and  only  one  (Maine)  remains  of 
the  original  fourteen  that  adopted 
it  during  the  "  temperance  wave  " 
of  1860-1870.  {World  Almanac, 
1914;  p.  248,  and  Textbook  of  True 
Temperance,  1911;  pp.  68-69.) 
2.  Where  prohibition  has  been  embodied 
in  law  it  has  failed  to  prohibit:  for 
a.  It  has  failed  in  Maine:  for 

(1)  In  spite  of  prohibition,  Port- 
land has  one  saloon  per  269 
inhabitants;  Augusta,  one 
per  170;  Gardiner,  one  per 
274;  Rockland,  one  per  171; 
Bangor,  one  per  100.  (M.  N. 
Clement,  ex-Excise  Commis- 
sioner of  New  York,  U.S.B.A. 
Yearbook,  1911;  p.  172.) 

(2)  In  spite  of  prohibition,  Port- 
land shows  one  arrest  per  24 
inhabitants;  Augusta,  one 
per  110;  Rockland,  one  per 
21;     Bangor,    one    per    18. 


64  THE  BRIEF 


(Textbook  of   True  Temper^ 
ance;  p.  126.) 
(3)  The  prohibition  law  is  sub- 
ject   to    constant    violation 
with    resulting    evil    conse- 
quences.  (Major  Holman  F. 
Day,  The  Muddle  in  Maine, 
Harper's  Weekly,  both  quoted 
in  U.S.B.A.  Yearbook,  1911, 
pp.  242-249;  Textbook  of  True 
Temperance;  pp.  106-108.) 
b.  Prohibition  has  failed  in  the  South- 
ern States:  for 

(1)  In  Tennessee   the   law  has 
proved  a  farce:  for 

(a)  In  the  cities  of  Ten- 
nessee (Chattanooga, 
Memphis,  Nashville) 
liquor  can  be  readily 
obtained  from  "  near- 
beer  "  saloons,  "  social 
clubs  "  formed  for  that 
particular  purpose,  etc. 
(R.  E.  Pritchard,  Fail- 
ure of  Prohibition  in 
the  South,  in  Harper's 
Weekly,  quoted  in 
U.S.B.A,  Yearbook, 
1911;  pp.  199-206.) 
(6)  Indictments  in  this 
State  for  violation  of 
the  law  amount  to 
nothing,  the  convicted 
escaping  with  light 
fines  which  are  more 


AN  ARGUMENTATIVE  BRIEF  65 

than  recompensed  by 
their  enormous  profits. 

(Id.) 

(2)  In  Georgia  the  law  has  re- 
mained unenforced:  for 

(a)  In  the  cities  of  Greor- 
gia  (Atlanta,  Mobile, 
Montgomery,  and  Sa- 
vannah) liquor  can  be 
freely  obtained  from 
"  near-beer  "  saloons, 
"  social  clubs,"  and 
small  druggists 
C*boot-leggers"). 
(R.  E.  Pritchard,  as 
above;  John  Kirk, 
Encouraging  the 
Moonshiner,  in  Har- 
per*s  Weekly,  quoted 
in  U.S.B.A.  Year- 
book, 1911;  pp.  217- 
220.) 

(6)  The  number  of  licenses 
issued  to  druggists  in 
Atlanta  for  the  sale  of 
alcohol  since  Georgia 
adopted  prohibition 
(1907)  has  increased 
from  100  to  500.  (N. 
W.  Johnson,  U.S.  In- 
ternal Revenue  Dep't., 
Textbook  of  True  Tem- 
perance; p.  114.) 

(3)  Prohibition     has     similarly 
failed    in    Mississippi    and 


66  THE  BRIEF 

North  Carolina.  (See  R.  E. 
Pritchard  and  John  Kirk  as 
quoted  above.) 

3.  The  effect  of  prohibition  has  been  to 
increase  in  prohibition  territory  the  use 
of  harmful  substitutes  for  alcohol,  such 
as  cocaine  and  opium:  for 

a.  The  use  of  opium  in  Maine  has 
.     steadily  increased,  particularly  in 

the  rural  districts.  (Dr.  Hamilton 
E.  Wright,  Textbook  of  True  Tem- 
perance; pp.  115-116.) 

b.  The  use  of  opium  and  cocaine  in 
the  South  has  been  steadily  on  the 
increase  of  late  years,  especially  in 
"  dry  "  territory.  (Hugh  C.  Weir, 
The  Opium  Peril  in  America,  in 
Putnam^ s  Magazine,  quoted  in  Jo- 
seph Debar's  Prohibition,  Its  Re- 
lation to  Good  Government;  pp.  102- 
105;  also  the  Currier  Commission, 
Judge  Harris  Dickson,  of  Vicksburg, 
Miss.,  and  Bishop  C.'H.  Brent,  all 
quoted  in  Textbook  of  True  Tem- 
perance, 1911;  pp.  115-116.) 

4.  In  spite  of  the  fact  that  46,000,000  peo- 
ple are  now  living  in  "  dry  "  territory,  the 
consumption  of  alcoholic  liquors  has  in- 
creased in  the  United  States  from  6.43 
gallons  per  capita  in  1850  to  22.77  gallons 
per  capita  in  1911.  (M.  N.  Clement,  N.  Y. 
ex-Excise  Commissioner,  U.S.B.A.  Year- 
book, 1911;  p.  169.) 

B.  Local  option  laws  have  failed  to  solve  the 
liquor  problem:  for 


AN  ARGUMENTATIVE  BRIEF  67 

1.  Local  option  is  ineffective  from  its  very 
nature :  for 

a.  Liquor  can  easily  be  secured  by 
those  living  in  "  dry  "  districts  from 
adjoining  "  wet  '*  districts. 

b.  The  "  dry  "  cities  of  Massachusetts 
show  high  records  of  arrests  for 
drunkenness:  for  example, 

\  (1)  During  the  year  1905  "  dry  " 
Brockton  had  284  arrests  per 
1000  inhabitants  on  this 
charge.  {Textbook  of  True 
Temperance;  pp.  132-135.) 

(2)  In  1907  there  were  in  "  dry  " 
Cambridge  a  total  of  1500 
arrests  for  drunkenness.  (Id.) 

(3)  In  "  dry  "  Worcester  there 
were  135  arrests  for  drunken- 
ness in  July,  1908,  and  220 
in  July,  1909.   (Id.) 

2.  Local  option  works  hardship  to  surround- 
ing license  districts:  for 

a.  People  flock  to  the  license  districts 
from  the  no-license  districts  when 
they  wish  alcoholic  liquor,  and  are 
disposed  to  over-indulgence  with  the 
opportunity  thus  obtained. 

b:  In  Boston,  in  the  year  1907,  of  the 
35,728  arrests  for  drunkenness  11,- 
528  were  those  of  persons  coming 
from  no-license  districts  in  the 
vicinity  of  Boston.  (Textbook  of 
True  Temperance;  p.  131.) 
C.  The  license  system  with  regulation  has  failed 
to  solve  the  liquor  problem:  for 


THE  BRIEF 

The  very  fact  that  the  liquor  question 
is  being  violently  agitated  throughout 
the  country  is  prima  facie  evidence  that 
this  system  —  that  longest  in  use  —  has 
failed  to  give  satisfactory  solution. 
By  the  system  of  license  and  regulation, 
the  business  of  selling  liquor  is  placed 
under  unhealthy  conditions:  for 

a.  It  is  to  the  interest  of  the  saloon- 
keeper to  sell  the  maximum 
amount  of  liquor. 
h.  It  is  to  his  interest  to  permit  his 
saloon  to  be  used  for  immoral  and 
illegal  purposes:  for 

(1)  He  will  naturally  be  impelled 
to  pursue  the  course  that 
will  most  quickly  and  easily 
increase  his  profits:  for 
(a)  Profit  is  the  goal  for 
which  he   enters   the 
business. 
(6)  On    the    analogy    of 
seemingly  respectable 
concerns  which,  nev- 
ertheless,    adulterate 
their  goods  and  other- 
wise deceive  the  pub- 
lic, the  saloon-keepers 
will  not  be  models  of 
business  virtue.  (Chi- 
cago Vice  Commission : 
The  Social  Evil  in  Chi- 
cago ;  p.  130  et  seq.) 
c.  Investigations  of  the  saloons  bear 
out  this  contention:  for 


AN  ARGUMENTATIVE  BRIEF  69 

(1)  An  investigation  by  the  N.Y. 
Vice  Commission,  carried  on 
from  January  to  November, 
1912,  shows  that  out  of  794 
saloons  and  concert  halls 
visited  308  were  found  "  dis- 
orderly." (Commercialized 
Prostitution  in  New  York; 
p.  145.) 

(2)  Of  445  saloons  investigated 
by  the  Chicago  Vice  Com- 
mission, July  to  October, 
1910,  236  were  found  "  dis- 
orderly." (The  Social  Evil 
in  Chicago;  p.  122.) 

II.  The  methods  heretofore   adopted  in  the  attempt 
to  solve  this  problem  are  bound,  if  continued,  to 
repeat  in  the  future  the  failures  of  the  past:  for 
A.  Prohibition  is  bound  to  fail:  for 

1.  It  is  based  upon  fundamentally  unsound 
principles:  for 

a.  It  is  an  attempt  by  a  majority  to 
prevent  a  minority  from  exercising 
a  form  of  individual  liberty  to  which 
that  minority  believes  itself  entitled. 
h.  It  is  a  breeder  of  contempt  for  the 
law:  for 

(1)  It  encourages  tricky  and  un- 
derhand subterfuges  to  evade 
a  law  that  is  regarded  as 
unjust  and  unwise.  (Prohibi- 
tion in  America,  quoted  in 
U.S.B.A.  Yearbook,  1911; 
pp.  191-198,  especially  197; 


70  THE  BRIEF 


Hugo  Muensterberg,  Text- 
hook  of  True  Temperance; 
p.  75.) 
(2)  It  promotes  the  growth  of 
law-violating  establishments, 
such  as  "  speak-easies,*' 
"  blind  tigers,"  etc.  (John 
Kirk,  Encouraging  the  Moon- 
shiner; and  U.S.B.A.  Year- 
hook;  pp.  217-220.) 

c.  It  rests  upon  an  unsound  moral 
basis:  for 

(1)  It  fails  to  recognize  that  true 
morals  are  the  result  of  self- 
control,  voluntarily  effected: 
for 

(a)  It  tries  to  effect  re- 
form through  legisla- 
tive enactment,  ac- 
cording to  a  conception 
of  morals  entertained 
at  a  given  time  by  a 
mere  majority. 

d.  It  is  purely  negative  in  character: 
for 

(1)  It  fails  to  recognize  that  the 
saloon  exists  in  response  to  a 
very  definite  and  real  social 
need.  (Committee  of  Fifty, 
Economic  Aspects  of  the 
Liquor  Problem;  pp.  210- 
240.) 

(2)  It  offers  no  substitute  for  the 
saloon. 

e.  It  is  unjust:  for 


AN  ARGUMENTATIVE  BRIEF  71 

(1)  Whereas  the  law  is  designed 
to  punish  the  seller; 

(!')  Yet  it  does  not  affect  the 
purchaser. 

(2)  Whereas  the  rich  can  secure 
liquor  by  importation,  etc.; 

(2')  Yet  the  poor  can  secure  it 
only  by  violation  of  the  law. 

B.  Local  option  is  bound  to  fail:  for 

1.  Under  the  most  favorable  conditions  the 
system  can  serve  only  as  a  temporary 
makeshift:  for 

a.  It  affects  only  small  districts  as 
units,  and  for  a  limited  period  of 
time,  ranging  from  one  to  two 
years,  according  to  the  frequency 
of  elections  in  those  districts.  (Jo- 
seph Debar,  Prohibition,  Its  Rela- 
tion to  Good  Government;  pp.  15- 
16.) 

C.  The  system  of  high  license  and  government 
regulation  will  necessarily  remain  ineffective: 
for 

1.  Control  by  the  government  can  be  se- 
cured only  at  second  hand :  for 

a.  Government  agents  are  subject  to 
fatally  strong  temptation  to  shirk 
their  duty:  for 

(1)  Profits  under  private  man- 
agement are  suflSciently  high 
to  pay  well  for  "  police  pro- 
tection," to  offer  "  graft  "  to 
those  "  higher  up,"  and  in 
other  ways  to  secure  immu- 
nity for  violation  of  the  law. 


72  THE  BRIEF 


b.  The   government  is  dealing  with 
men  whose  greatest  interest  is  to 
use  their  property  for  immoral  and 
illegal     purposes.     (Chicago  Vice 
Commission,    The  Social    Vice  in 
Chicago;  pp.  119-140.) 
2.  The  saloon  business  is  necessarily  de- 
graded by  the  element  of  private  profit: 
for 

a.  The  strong  inducement  of  high 
profits  is  often  sufficient  to  turn 
the  saloon  into  an  institution  that 
panders  to  vicious  elements  and 
tastes:  for 

(1)  A  saloon-keeper's  success  is 
measured  not  by  the  way  in 
which  his  business  is  run,  but 
by  the  amount  of  his  profits. 

b.  The  temptation  to  increase  profits 
in  illegal  ways  is  especially  strong: 
for 

(1)  The  saloon  is  a  social  center 
and  an  attraction  to  great 
numbers  who  have  no  other 
place  in  which  to  gather. 
(Committee  of  Fifty,  Eco- 
nomic Aspects  of  the  Liquor 
Problem;  pp.  210-240.) 

(2)  The  opportunities  of  gain 
from  the  establishment  of 
d  a  n  c  e-h  alls,  gambling- 
rooms,  and  brothels  are 
ready  at  hand  for  the  sa- 
loon-keeper. (Vice  Commis- 
sion of  Chicago,  The  Social 


AN  ARGUMENTATIVE  BRIEF  73 

Evil  in  Chicago;  pp.  119- 
140.) 
3.  Control  by  the  government  is  too  dif- 
ficult of  enforcement :  for 

a.    Whereas  the  investigation  made 
by  the  New  York  Vice  Commission 
shows    that    out  of    794    saloons 
visited  from  January  to  November, 
1912,  308  were  found  to  be  "  dis- 
orderly*'; 
a'.  Yet  in  the  year  from  September, 
1911,  to  September,  1912,  there 
were  but  six  revocations  of  licenses 
f or  "  disorderliness. ' '  {Commercial 
Prostitution  in  New  York;  pp.  145 
and  161.) 

III.  The  solution  offered  by  the  plan  proposed  presents 

a  fundamentally  sound  and  intelligent  basis  for 

dealing  with  the  liquor  problem:  for 

A.  Governmental  authorities  will  be  able  to  take 

care  of  a  definite  and  real  social  need  without 

the  debauchery  of  that  need  by  the  greed  of 

gain:  for 

1.  The  object  of  running  a  saloon  will,  tm- 
der  this  plan,  be  to  sell  good  liquor  under 
healthy  conditions  and  in  a  respectable 
atmosphere:  for 

a.  The  success  of  the  institution  under 
the  proposed  plan  would  be  meas- 
ured by  the  efficiency  and  ability 
with  which  it  should  satisfy  a  social 
need,  rather  than  by  the  amount 
of  the  profit  gained. 

2.  There  will  be  no  inducement  to  promote 


74  THE  BRIEF 

the  illegal  uses  now  m^de  of  the  saloon: 
for 

a.  Profit  is  not  the  motive  underlying 
the  enterprize. 

3.  Under  the  proposed  plan  a  more  gener- 
ally organized  method  of  handling  the 
entire  saloon  question  can  be  scientifi- 
cally and  intelligently  evolved  in  place  of 
the  present  chaotic  method. 

4.  Other  institutions  of  a  social  nature,  such 
as  dance-halls,  etc.,  now  allied  with  the 
saloon,  could  be  operated  for  the  benefit 
of  the  public  under  conditions  of  decency. 

B.  Direct  control  of  the  distribution  of  liquor 
will  be  of  great  advantage  to  the  community: 
for 

1.  Such  profits  as  are  made  can  be  used  for 
lessening  the  tax  rate,  for  building  roads, 
schools,  and  for  other  commimity  pur- 
poses. 

2.  Under  the  proposed  plan  an  effective 
distinction  can  be  made  between  the 
grades  of  liquor  sold:  for 

a.  Regulations  discriminating  be- 
tween the  more  harmful  spirituous 
liquors  and  the  more  beneficial  malt 
and  vinous  liquors  can  be  put  into 
effect:  for 

(1)  The  whole  business  will  be 
under  the  control  of  govern- 
mental authorities. 

3.  Direct  governmental  control  will  afford 
more  adequate  opportunities  than  will 

I  any  other  system  to  effect  certain  types 

\; 


I  \)  \  of  social  regulation:  for  example, 


/ 


AN  ARGUMENTATIVE  BRIEF  75 

a.  Selling  to  minors. 

h.  Dispensing  immoderate  quantities 

of  liquor  to  single  individuals, 
c.  Hours  of  closing. 
C.  ^The  solution  offered  in  the  plan  proposed  is 
eminently  practical:  for 

1.  Whereas,  at  present,  in  all  license  dis- 
tricts, save  those  of  South  Carolina,  the 
municipality,  or  similar  unit,  cedes  the 
license  to  private  individuals  in  return 
for  a  definite  tax; 

1'.  Under  the  proposed  plan,  the  munici- 
pality, or  other  unit  (i.e.,  the  govern- 
ment), will  retain  the  title  to  the  license, 
or  licenses,  hiring  a  competent  mana- 
ger, under  fixed  salary,  to  conduct  the 
saloon. 

2.  The  plan  proposed  has  already  met  with 
success:  for 

a.  It  has  been  adopted  by  Sisseton, 
South  Dakota,  and  has  been 
operated  effectively  for  the  year 
that  has  elapsed  since  its  adoption. 
{N.Y.  Tribune,  March  24,  1914; 

p.l.) 
h.  A  variant  of  the  scheme  has  been 
successful  in   South   Carolina   for 
some  time  (i.e.,  the  County  Dispen- 
sary System). 

Conclusion 

I.  Since:  None  of  the  methods  heretofore  advocated 
have  proved  an   adequate   station  of  the 
liquor  problem;  and 
II.  Since:  The  methods  heretofore  used  in  the  attempt 


76 


THE  BRIEF 


to  solve  this  problem  are  bound  to  repeat 
in  the  future  the  failures  of  the  past;  and 
III.  Since:  The  solution  offered  in  the  plan  of  govern- 
ment control  will  give  a  fundamentally 
sound  and  intelligent  basis  for  dealing  with 
this  problem; 
TheUbfoee:  The  elimination  of  private  profit  by  placing 
the  sale  of  liquor  under  government  control 
offers  the  best  solution  of  the  liquor  problem. 


IV 

EXAMPLES  OF  FAULTY  BRIEFING  FOR 
CRITICISM  AND  CORRECTION 

(1) 
Proposition:  The  growth  of  the  university  in  the  United 
States  will  result  in  the  destruction  of  the 
small  college, 

{Argument  for  the  negative)     ^ 

I.  Every  college  has  a  natural  supply:  for 

A.  The  alumni,  wishing  their  Alma  Mater  to  be 
strong,  direct  their  sons,  younger  brothers, 
and  friends  to  their  own  college. 

II.  The  prestige  of   well-known  universities  will  not 
greatly  aid  a  man  in  his  later  life:  for 

A.  The  business  world  is  becoming  too  practical 
to  accept  a  man  simply  because  he  has  been 
graduated  from  one  of  these  large  institutions. 

III.  The  educational  value  of  the  university  is  not  so 
great  as  that  of  the  college:  for 
A.  The  contention  that  there  is  a  greater  choice 
of  studies  is  weak:  for 

1.  The  average  student  can  and  will  follow 
the  same  line  in  the  college  or  in  the 
university;  yet 

2.  We  admit  that  the  exceptional  student 
has  greater  chance  to  specialize  in  the 
imiversity. 


78  THE  BRIEF 

B.  The  method,  wherein  lies  the  difference  be- 
tween the  two  classes  of  institutions,  rather 
than  the  subject,  is  better  in  the  college:  for 

1.  In  the  university  the  lecture  method  is 
more  generally  used  on  account  of  the 
larger  numbers  of  students:  whereas 

2.  In  the  college  the  students  receive  per- 
sonal attention  and  come  into  personal 
contact  with  the  professors. 

3.  The  students  in  the  small  college  derive 
the  great  advantage  of  recitation  and 
public  speaking. 

IV.  The  social  life  of  the  college  is  a  great  benefit  to  the 
students,  and  is  not  obtained  at  the  university:  for 
A.  In  the  college  the  student  is  able  to  become 
personally  acquainted  with  his   own  class- 
mates and  many  of  the  other  classes:  whereas 
1.  This  is  impossible  in  the  university. 

(2) 

Proposition:  Should  the  course  leading  to  the  degree  of 
A.B.  he  shortened  to  three  years? 

(Argument  for  the  negative) 
Introductory 

Of  late  years  there  has  been  a  tendency  to  specializa- 
tion in  almost  every  subject. 

This  necessitates  giving  more  time  to  the  preparation 
of  one's  specialty  after  college  than  was  given  in  the  early 
days. 

There  is  also  a  tendency  to  attempt  to  raise  the  standard 
of  many  colleges  by  making  the  requirements  for  entrance 
greater. 


EXAI^IPLES  OF  FAULTY  BRIEFING  79 

This  necessitates  a  more  thorough  college  preparation, 
and  consequently  that  more  time  be  devoted  to  prepara- 
tion. 

Thus  it  is  that  the  college  course  is  pressed  more  and 
more  at  both  ends. 

For  this  reason  many  urge  that  too  much  time  is  devoted 
to  the  college  course,  and  that  it  ought  to  be  shortened  at 
least  one  year. 

What  we  wish  to  find  out  is  whether  such  a  shortening 
is  necessary,  and  would  be  expedient. 

Argument 

I.  Shortening  the  college  course  is  not  necessary:  for 

A.  It  is  not  necessary  for  those  who  feel  that 
they  must  get  through  college  in  less  than  four 
years:  for 

1.  In  very  many  colleges  at  the  present  day 
provision  is  made  for  those  who  are  willing 
to  do  four  years'  work  in  three. 

B.  An  educational  career  can  be  shortened  in  the 
preparatory  school  or  in  the  professional  school: 

.     and  hence 

1.  There  are  other  places  than  the  college 
in  which  one's  course  can  be  shortened. 

C.  It  is  better  to  shorten  one's  course  in  either 
of  these  two  places  than  in  the  college:  for 

1.  It  is  better  to  shorten  the  professional 
course:  for 

a.  A  professional  education  only  starts 
in  the  professional  school:  for  . 

(1)  It  is  a  life-long  education. 

b.  A  liberal  education  is,  at  best,  but 
restricted  at  the  present  time. 

2.  It  is  better  to  shorten  it  at  the  prepara- 
tory school:  for 


80  THE  BRIEF 


a.  According  to  President  Bartlett  of 
Dartmouth  College,  a  year  at  college 
has  a  much  better  effect  on  a  man's 
mind  than  one  at  preparatory  school. 

h.  More  time  is  devoted  to  the  courses 
in  the  preparatory  schools  than  is 
necessary :  ^  for 

(1)  They  teach  in  many  cases  sub- 
jects that  ought  to  be  taught 
earlier. 

(2)  They  teach  in  many  cases  sub- 
jects that  can  be  better  taught 
in  college:  for 

(a)  They  teach  higher  math- 
ematics. 

(6)  They  teach  two  years  of 
physics. 

(c)  Such  subjects  would 
have  better  apparatus 
at  college. 

(d)  The  teachers  in  college 
would  be  better. 

c.  The  statement  of  a  prominent  edu- 
cator that  it  is  becoming  more  and 
more  necessary  to  shorten  a  college 
course  because  students  enter  contin- 
ually at  greater  age  is  not  true:  for 

(1)  While  it  is  true  of  Harvard, 
yet  statistics  show  that  it  is 
not  true  of  other  colleges. 

(2)  The  age  of  entrance  at  Har- 
vard is  becoming  more  and 
more  uniform. 

*  President  Eliot. 


EXAMPLES  OF  FAULTY  BRIEFING  81 

(3) 

Proposition:  The  restoration  of  the  Canteen  System  would 
best  serve  the  interests  of  the  United  States 
Army, 

(An  Introduction) 

I.  Two  terms  in  this  question  need  explanation. 

A.  Canteen  system  means  a  club  for  enlisted  men 
where  they  may  meet  for  a  social  evening  and 
enjoy  a  talk  over  a  glass  of  beer. 

B.  Best  interests  of  the  United  States  Army 
means,  in  this  question,  that  the  soldiers 
may  have  a  place  for  drinking  beer  in  the 
army  grounds. 

1.  If  liquor  is  sold  in  the  army,  no  drunken- 
ness will  result ;  the  soldiers  will  be  content. 

2.  If  liquor  is  not  sold  in  the  army,  the  men 
will  go  outside  to  low  dives  and  degen- 
erate houses,  and  will  fall  morally  and 
physically. 

II.  The  question,  then,  resolves  itself  into  this :  Is  it  right 
to  sell  liquor  in  the  United  States  Army? 

(4) 

Proposition:  The  college  course  leading  to  the  degree  B.A, 
should  he  limited  to  three  years. 

{Argument  for  the  negative) 

I.  The  plan  of  shortening  the  course  by  dropping  the 
present  senior  year  should  not  be  adopted:  for 
A.  The  instruction  received  during  the  senior 
year  is,  however  theoretical,  indispensable  to 
the  well-educated,  cultured  man:  since 


THE  BRIEF 

1.  The  instruction  of  the  first  three  years 
is  mere  book-learning;  whereas 

2.  Senior  year  teaches  ethics  and  theories 
of  hfe. 

B.  The  plan  would  be  unfair  to  present  holders 
of  the  degree:  as 

1.  The  dropping  of  senior  year  would  admit 
men  to  an  equal  standing  with  them, 
who 
a.  Had  not   an  equal    education  or 

knowledge;  or 
h.  Had  not  done  an  equal  amount 
of  work. 

II.  The  plan  of  shortening  the  course  by  doing  four 
years'  work  in  three  should  not  be  adopted:  for 

A.  Fewer  persons    would    receive   the    degree: 
for 

1.  Only  the  brightest  students  could  meet 
the  requirement:  since 

a.  The  curriculum  is  already  crowded 

{Ear.  Mo.  1899). 
h.  This  method  would  make  it  even 
more  crowded,  and  hence, 

(1)  The  number  of  educated  citi- 
zens would  become  smaller 
year  by  year. 

B.  The  health  of  the  students  could  not  stand 
the  increased  strain:  for 

1.  Climatic  conditions  in  America  are  not 
suitable  for  prolonged  study,  day  after 
day  {Ear.  Mo.  1899). 

C.  No  time  could  be  given  to 

1.  The  cultivation  of  friendships,  not  the 
least  valuable  part  of  college  life. 


EXAMPLES  OF  FAULTY  BRIEFING  83 

2.  Debating  interests  or  literary  efforts,  an- 
other valuable  part  of  college  life. 

3.  Athletics,  since 

a.  The  students'  time  would  be  ab- 
sorbed by  the  curriculum. 

III.  The  plan  of  dropping  freshman  year  and  increasing 
the  admission  requirements  should  not  be  adopted: 
for 

A.  It  would  throw  the  work  back  into  the  pre- 
paratory schools  or  into  the  hands  of  tutors. 

B.  The  student  would  not  receive  proper  instruc- 
tion: for 

1.  Most  preparatory  schools  have  not  the 
funds  necessary  to  secure  the  most  com- 
petent instructors. 

2.  The  colleges  have  the  best  teachers  in 
the  various  departments. 

C.  The  same  amount  of  time  would  be  required 
in  the  end:  for 

1.  The  proposed  method  would  only  force 
the  student  to  spend  the  time  now  oc- 
cupied in  freshman  year  in  another  year 
at  the  preparatory  school  in  order  to 
meet  the  higher  requirements :  hence 
a.  He  would  secure  no  gain  in  time. 

(5) 

An  argument  in  favor  of  the  establishment  of  a  merchant 
marine  under  the  auspices  of  the  Government 

I.  The  fact  that  the  shipping  interests  oppose  the  pend- 
ing bill  for  the  establishment  of  a  merchant  marine 
is  an  argument  in  favor  of  the  bill:  for 

A.  It  would  be  a  bad  thing  for  the  shipping  inter- 


84  THE  BRIEF 

ests  to  have  the  Government  in  the  field  as  a 

rival:  for 

1.    Although  the  shipping  interests  fear,  to 

some  extent,  Government  competition; 
1'.  Yet  they  fear  even  more  that  the  en- 
trance of  the  Government-owned  ships 
will  be  a  protection  to  the  independent 
companies  that  will  enter  the  field  if  it  is 
known  that  fair  play  and  equal  competi- 
tion will  be  accorded  them. 

(6) 
An  argument  from  the  Lincoln-Douglas  Debate  at  Alton 

I.  The  contention  of  the  correspondent  of  the  Chicago 
Times,  signing  himself  "  An  Old  Line  Whig,"  that 
previous  to  three  years  ago  it  had  been  maintained 
that  the  words  "  all  men  "  in  the  Declaration  of  In- 
dependence do  not  include  the  negro  is  not  to  be 
advanced:  for 
A.  The  contention  that  Henry  Clay  had  denied  that 
this  clause  includes  the  negro  is  untenable:  for 
1.  He  upholds  this  contention  by  quoting  a 
portion  of  a  speech  by  Henry  Clay  which 
proves  exactly  the  opposite  of  his  conten- 
tion: for 

a.  In  this  same  speech  Henry  Clay  says 
that  it  is  true,  as  an  abstract  princi- 
ple, that  **  all  men  are  created  equal," 
but  we  cannot  practically  apply  it  in 
all  cases:  for 

(1)  In  the  cases  of  females,  minors, 
and  insane  persons  it  is  inap- 
plicable. 

(2)  Henry  Clay  says  elsewhere  in 


EXAMPLES  OF  FAULTY  BRIEFING  85 

the  same  speech  that  the  dec- 
laration that  "  all  men  are  cre- 
ated equal  "  is  a  great  funda- 
mental truth. 
2.  Mr.  Clay  states  a  little  farther  on  in  this 
same  speech  that  he  looked  on  the  in- 
stitution of  slavery  as  a  great  evil. 

(7) 

An  argument  from  the  Lincoln- Douglas  Debate  at  Alton 

I.  The  contention  advanced  by  Mr.  Lincoln  to  the  effect 
that  the  Union  cannot  continue  to  exist  half  slave 
and  half  free  is  not  to  be  maintained:  for 

A.  It  is  contrary  to  the  principles  of  those  who 
framed  the  Constitution  to  legislate  for  all  the 
States  alike,  in  disregard  of  local  conditions :  for 

1.  Whereas  a  law  may  be  adapted  to  the 
Green  Mountains  of  Vermont; 

1'.  Yet  this  same  law  may  be  unsuited  to 
the  rice  plantations  of  South  Carolina. 

2.  Whereas  a  law  may  be  well  adapted  to 
the  prairies  of  Illinois; 

£'.  Yet  it  might  not  be  suited  to  the  mining 
regions  of  California. 


SELECTIONS  FOR  BRIEFING 

In  basing  a  brief  upon  arguments  already  set  in  order  by  an- 
other person,  two  methods  of  procedure  are  to  be  noted:  the 
brief  may  be  the  mere  analytical  ordering  of  the  arguments  as 
contained  in  the  work  under  consideration;  or  the  arguments 
may  furnish  the  material  from  which  one  draws  an  original 
brief,  —  selecting,  omitting,  reinforcing,  rearranging  the  evi- 
dence as  best  suits  one's  purpose.  Of  course,  the  second  of 
these  two  methods  is  the  natural  and  more  common  order  of 
procedure  for  one  whose  brief  is  to  serve  the  normal  purpose,  — 
that  of  convincing  another  person  of  the  truth  of  the  proposition 
under  discussion.  However,  for  drill  and  discipline,  it  is  very  use- 
ful to  analyze  and  set  in  order  a  written  argument,  following  the 
logical  processes  of  the  writer,  —  reconstructing,  as  it  were  by 
conjecture,  the  brief  upon  which  the  elaborated  argument  was 
based  in  the  first  place. 

The  following  selections  constitute  material  suitable  for  such 
"second-hand  briefing."  The  first  two  —  newspaper  editorials  — 
have  been  developed  into  brief-form  as  illustrations  of  the 
method.  In  cases  of  this  sort,  consisting  generally  of  but  a  para- 
graph or  two,  it  would  be  needless  routine  to  elaborate  all  the 
formalities  of  title,  preliminary  introduction,  main  introduction, 
statement  of  issues,  main  argument,  and  conclusion.  In  fact,  the 
items  in  such  cases  usually  present  no  more  than  what  would,  in 
extended  form,  constitute  the  fifth  of  these  subdivisions,  the  main 
argument.  In  the  longer  selections,  however,  the  student  may 
well  develop,  as  far  as  the  matter  will  justify,  the  fully  elaborated 
and  formal  forensic  brief. 


EDITORIALS  87 


1.   EDITORIALS 

(1) 
RECENT  POLICE   ACTIVITIES 

However  biased  its  source,  there  is  point  in  the  conten- 
tion of  the  former  chief  of  the  New  York  poHce,  Wilham  S. 
Devery,  that  the  police  did  wrong  to  risk  the  cathedral  by 
letting  the  dynamiters  go  so  far  with  their  plot.  If  the 
bomb  had  gone  off  prematurely,  the  death  or  arrest  of  the 
culprits  would  have  been  no  consolation  for  the  damage 
done  to  the  great  edifice.  In  fact,  the  theatrical  way  in 
which  the  scene  was  staged  does  not  inspire  confidence  in 
the  police,  and  unhappily  the  very  haste  made  to  star  the 
detective  concerned  as  a  hero,  to  the  detriment  of  his  future 
usefulness,  gives  a  certain  color  to  the  charge  of  the  con- 
spirators that  he  was  something  more  than  a  detective,  that 
he  had  been  playing  the  part,  more  familiar  in  Russia  than 
here,  of  agent  'provocateur.  Such  a  charge  is  not  easy  to 
prove,  and  mere  assertion  is  no  proof  at  all,  but  a  wide- 
spread suspicion  of  this  sort  is  harmful,  and  the  tactics  of 
the  police  ought  not  to  be  such  as  to  encourage  it.  A  little 
less  of  the  dramatic  might  help  to  prevent  distrust.  {New 
York  Times. ^) 

I.  The  recent  action  of  the  New  York  City  police  au- 
thorities in  allowing  dynamiters  to  manufacture,  lo- 
cate, and  even  light  their  bombs  before  their  arrest, 
was  unwise:  for 
A.  Ex-Police  Captain  William  S.  Devery,  a  practi- 
cal police  expert,  has  expressed  himself  to  this 
effect. 

*  This  ajfl  the  following  three  editorials  are  included  by  the  kind 
permission  of  the  New  York  Times. 


THE   BRIEF 

B.  Any  slight  miscarriage  in  the  plans  of  the  de- 
tectives engaged  on  the  case  might  easily  have 
resulted  in  serious  damage  and  loss  of  life. 

C.  The  plan  of  the  department  does  not  inspire 
public  confidence:  for 

1.  Their  method   of  procedure  in  the  case 
has  been  distinctly  un-American:  for 

a.  The  detective  in  charge  of  the  case 
was  practically  an  agent  provocateur, 
as  utilized  imder  the  Russian  Gov- 
ernment. 

2.  Their  plan  savors  suspiciously  of  the  melo- 
dramatic: for 

a.  It  seems  to  have  been  staged  for 
public  effect,  rather  than  for  securing 
the  ends  of  justice:  for 

(1)  The  "  starring  "  of  the  princi- 
pal detective  in  the  press  has 
of  necessity  largely  destroyed 
his  further  usefulness  to  the 
department:  for 

(a)  His  identity  has  now  be- 
come public. 


(2) 
DELAWARE  CLINGS  TO  THE  WHIPPING-POST 

In  voting  by  a  large  majority  against  the  abolition  of  the 
whipping-post  the  House  of  Representatives  in  Delaware 
has  shown  how  conservatism  can  degenerate  into  stupidity. 
Delaware's  archaic  whipping-post  law  can  justify  itself  only 
by  pointing  to  its  lineage  from  the  Middle  Ages.  True, 
penologists  like  Magistrate  House  and  Colonel  Roosevelt, 
in  their  horror  of  wife-beaters,  have  urged  this  brutish  pun- 


EDITORIALS  89 

ishment  for  brutish  men.  But  it  defeats  its  own  object. 
The  disgrace  of  a  pubUc  flogging  reacts  upon  the  beaten 
wife.  She  will  fear  and  feel  the  stigma,  and  she  will  shrink 
from  bringing  it  on  her  family  by  complaining.  If  she  enters 
complaint,  the  man  returns  from  the  lashing  angry  and  in- 
censed, not  against  the  strong-armed  jailer,  but  against  the 
weak  woman  who  was  the  occasion  of  his  suffering. 

But  lashes  are  also  bestowed  in  Delaware  on  tramps, 
"  confidence  "  men,  thieves,  highwaymen,  and  disorderly 
persons.  A  large  proportion  of  men  who  become  tramps  is 
of  broken-down  drunkards,  or  the  otherwise  physically  and 
mentally  defective.  They  need  medical  treatment,  not  the 
cat-o'-nine-tails,  and  work  in  the  open  air  on  State  farms. 
As  for  the  others,  we  recall  that  Warden  Meserve,  of  the 
New  Castle  County  Workhouse  in  Delaware,  resigned  after 
scourging  235  men,  saying  that  those  who  were  lashed 
never  reformed,  but  became  hardened  criminals.  It  is 
possible  that  Delaware  is  to  some  extent  protected  from 
invasion  of  the  criminally  minded  from  other  States  by  the 
prevalent  fear  of  the  whipping-post.  But  this  advantage, 
so  far  as  it  is  obtained,  is  acquired  at  the  expense  of  any 
sane  effort  at  reform  of  criminals  and  by  a  means  that 
brutalizes  prisoners,  executioners,  and  —  it  seems  certain 
—  legislators.  {New  York  Times.) 

I.  The  retention  of  the  whipping-post  by  the  House  of 
Representatives  in  Delaware  is  an  unjudicious  meas- 
ure of  legislation:  for 

A.  As  an  effective  punishment   for   the  crime  of 
wife-beating  public  flogging  is  ineffective:  for 
1.    Although  Magistrate  House  and  Colonel 
Roosevelt,  well-known  penologists,  have 
urged  its  continuance; 
1'.  Yet  the  punishment  defeats  its  own  end: 
for 


90  THE  BRIEF 

a.  The  woman  in  the  case  is,  by  the 
character  of  the  penalty,  restrained 
^  from  bringing  complaint  against  the 
offender:  for 

(1)  The  disgrace  of  the  public 
flogging  brings  a  stigma  upon 
herself  and  her  family  as  well 
as  upon  the  offender  himself. 

(2)  The  guilty  husband  is  en- 
couraged to  direct  further 
hostility  against  his  wife:  for 

(a)  He  naturally  feels  that 
she  was  the  immediate 
cause  of  his  physical 
suffering. 

B.  As  a  punishment  for  tramps  and  vagrants  the 
punishment  is  ineffective:  for 

1.  A  large  proportion  of  those  who  are  con- 
victed on  these  counts  are  in  need  of 
medical  treatment  rather  than  of  corporal 
discipline:  fOr 

a.  They  are  composed  in  great  degree 
of  men  broken  down  physically  or 
deficient  mentally. 

2.  Those  who  do  not  fall  under  the  classifi- 
cation of  "  deficients  "  are  not  reformed 
by  flogging:  for 

a.  Warden  Meserve,  of  the  New  Cas- 
tle County  Workhouse,  who  has 
scourged  235  men,  is  authority  for 
the  statement. 

C.  The  contention  that  fear  of  public  flogging  has 
protected  Delaware  from  an  invasion  of  crimi- 
nals from  neighboring  States  is  not  a  sufficient 
argument  for  the  retention  of  the  penalty:  for 


EDITORIALS  91 

1.  The  protection  alleged  has  been  secured 
only  at  the  expense  of  sane  efforts  on  the 
part  of  the  state  to  substitute  modern 
methods  of  reforming  the  criminal  for 
the  antiquated  and  brutal  methods  of 
physical  punishment. 


(3) 
GOVERNOR  VAN  WYCK  AND  THE  CANAL  RING 

Does  any  man  doubt  that  if  Judge  Van  Wyck  is  elected 
Governor  he  will  turn  out  the  thieving  Republican  canal 
deepeners  and  smash  their  ring?  Will  he  not  have  the  most 
powerful  imaginable  motive  for  putting  as  many  as  possi- 
ble of  them  in  the  State  prison;  the  desire,  that  is,  of  win- 
ning public  confidence  and  approbation  in  a  high  degree? 

Governor  Tilden's  pursuit  of  the  Tweed  ring  thieves 
made  him  Governor.  His  pursuit  of  the  canal  ring  thieves 
made  him  the  Democratic  candidate  for  President.  No- 
body has  f  orgotteji  that  great  example  of  popular  trust  and 
admiration  centering  upon  a  public  officer  who  had  exhib- 
ited great  zeal  and  diligence  in  bringing  to  justice  the 
rascals  who  had  stolen  the  people's  money.  But  let  no  man 
forget  that  the  rascals  Tilden  pursued  were  his  political 
enemies.  Tweed  had  opposed  him  in  the  party,  and  at  last, 
in  his  coarse  and  brutal  way,  had  given  him  a  public  and 
moral  insult  which  Tilden  could  neither  forget  nor  forgive. 
Tweed  was  doomed  from  that  day.  The  biggest  canal 
rascals  were  Republicans. 

Every  consideration,  personal  and  political,  will  urge  on 
Governor  Van  Wyck  to  be  swift  and  stern  in  his  dealings 
with  the  Republican  canal  thieves.  No  consideration  of  any 
kind  will  hold  him  back. 
"^  With  Governor  Roosevelt,  on  the  contrary,  the  most 


92  THE  BRIEF 

powerful  considerations  will  be  those  that  restrain.  Van 
Wyck  will  build  up  his  party  by  dragging  this  corruption 
into  the  light.  Roosevelt  will  destroy  his  party  if  he  touches 
it.  A  Democratic  Governor  might  open  the  way  to  the 
Presidency  by  a  triumphant  campaign  against  the  corrup- 
tionists.  A  Republican  Governor  who  attacks  George 
Aldridge  and  the  other  powerful  Republicans  who  are  re- 
sponsible for  the  canal  scandal  must  abandon  all  higher 
ambitions.  He  may  smash  the  canal  ring,  but  he  will  go 
out  of  politics  at  the  end  of  his  term  just  as  Black  goes  out 
on  January  1. 

There  is  nothing  but  Roosevelt's  native  dislike  of  un- 
worthy public  servants  that  would  prompt  him  to  make 
war  on  the  canal  rascals  of  his  party.  But  how  much  of  that 
dislike  remains?  He  is  making  his  campaign  in  strange 
companionship  —  Piatt,  Aldridge,  Woodruff.  If  he  can  be 
on  such  good  terms  with  Republican  maladministration  in 
the  campaign,  what  reason  have  we  to  expect  him  after 
election  to  turn  upon  his  present  intimate  associates  with 
sudden  austerity? 

There  is  a  deadly  certainty  of  doom  fo^:  the  canal  rascals 
if  Van  Wyck  is  elected.  There  is  very  grave  doubt  whether 
Roosevelt's  big  *'  if  "  would  n't  blind  his  eyes  all  through 
his  term.  If  any  voter  wants  the  canal  frauds  punished 
he  will  vote  against  his  intent  if  he  votes  for  Roosevelt. 
{New  York  Times,) 


(4) 
NOT  A  MODEL  INVESTIGATION 

It  would,  indeed,  be  a  humiliation  for  the  Public  Service 
Commissioners  in  the  First  District  to  be  put  out  of  office 
as  the  result  of  the  investigation  and  report  of  the  Thomp- 
son Committee.  The  committee  finds  as  the  conclusion  of 


EDITORIALS  93 

one  of  the  three  reports  it  has  prepared  that  the  Commis- 
sioners in  the  First  District  "  have  not  put  in  operation  the 
provisions  of  the  PubHc  Service  Commission's  law  for  the 
regulation  of  public  service  corporations  in  a  manner  which 
has  produced  the  results  reasonably  to  be  expected."  That 
judgment  might  be  passed  upon  the  work  of  the  Thompson 
Committee  itself.  Its  labors  ended  in  a  disagreement,  al- 
most in  a  fight,  and  there  are  two  Republican  reports  and 
one  Democratic.  The  minority  Democrats  of  the  commit- 
tee have  discovered  nothing  to  censure  in  the  doings  of  the 
Commissioners,  while  the  two  Republican  reports  find 
much  that  is  blameworthy,  mainly  acts  of  omission,  negli- 
gence, and  inefficiency  rather  than  positive  wrong. 

The  charges  which  the  majority  report  makes  against 
the  Commissioners  are  not  very  startling;  considered  each 
by  itself,  they  are  not  very  serious.  Taken  together,  they 
do  appear  to  constitute  a  case  of  not  enforcing  the  provi- 
sions of  the  law,  particularly  in  not  compelling  the  public 
service  corporations  to  obey  the  orders  of  the  Commission. 
That  raises  again  the  old  question  whether  service  corpor- 
ations would  be  able  to  carry  on  their  business  if  they 
obeyed  all  the  many  orders  the  regulating  commissions 
issue.  Mr.  Whitridge,  who  has  come  to  be  considered  an 
authority  on  these  matters,  declares  in  effect  that  if  a  cor- 
poration in  good  faith  attempted  to  carry  out  all  the  orders 
issued  to  it,  it  would  end  its  days  in  bankruptcy,  and  its 
officers  would  end  theirs  in  a  madhouse.  Mr.  Whitridge's 
fondness  for  the  picturesque  may  have  betrayed  him  into 
making  an  extreme  statement.  But  certain  it  is  that  com- 
mission orders  are  frequently  conflicting,  and  they  some- 
times appear  to  be  unreasonable,  because  to  carry  them  out 
faithfully  would  be  a  public  injury,  not  a  public  relief.  The 
Commissioners  are  accused,  too,  of  making  altogether  too 
free  use  of  automobiles  maintained  at  the  expense  of  the 
taxpayers.    These  charges  appear  to  be  proved,  and  the 


94  THE  BRIEF 

guilty  Commissioners  ought  to  be  thoroughly  ashamed  of 
themselves.  Men  to  whom  large  salaries  are  paid,  and  who 
have  a  responsibility  for  the  control  of  a  great  part  of  the 
actual  management  of  corporations  employing  billions  of 
capital,  ought  to  be  above  such  petty  practices. 

Altogether,  the  results  of  the  work  done  by  the  investi- 
gating committee  are  unsatisfactory.  The  Commissioners 
appear  to  have  laid  themselves  open  to  censure;  it  is  possi- 
ble that  they  have  not  given  due  attention  to  their  duties; 
they  may  be  incompetent.  But  three  reports  from  an  in- 
vestigating committee,  differing  one  from  the  other,  and 
not  very  positive  in  their  conclusions,  are  not  a  very  good 
basis  for  final  action  in  such  a  case.  Using  the  material  ob- 
tained by  the  committee,  Governor  Whitman  might  call 
upon  the  Commissioners  to  answer  these  and  other  charges, 
and  by  a  supplementary  investigation  of  his  own  he  might 
be  able  to  determine  whether  it  was  his  duty  to  remove 
the  Commissioners  or  to  recommend  suitable  action  to  the 
Legislature.  The  enactment  of  the  Thompson  bill  without 
further  inquiry  would  be  attributed  to  a  desire  to  get  de- 
sirable offices  for  Republicans.  {New  York  Times.) 


(5) 

STANDARDS  OF  EDUCATION  IN  THE  WOMEN'S 
COLLEGES 

I  suppose  no  one  will  question  that  the  leading  Eastern 
colleges  for  women  are,  in  order  of  age,  approximately, 
Vassar,  Wellesley,  Smith,  Bryn  Mawr,  Radcliffe,  and  Bar- 
nard. If  will  consult  the  catalogues  of  these  col- 
leges, he  will  find,  I  think,  that  many  of  his  suggestions  as 
to  ideal  courses  have  already  been  anticipated;  that  the 
colleges  themselves,  in  fact,  are  leading  the  way  to  a  truer 
standard  of  education.    Many  of  these  courses,  however. 


EDITORIALS  95 

indicate  changes  in  curriculum  made  within  a  few  years.  If 
the  sister  and  the  cousins  and  the  friends  were  graduated 
even  four  or  five  years  ago,  they  had  perhaps  no  opportu- 
nity to  elect  them.  But  the  point  remains  that  the  colleges 
have  recognized  the  worth  of  special  courses  in  psychology, 
pedagogy,  hygiene,  physical  chemistry,  chemistry  of  foods, 
physiology,  social  science,  social  ethics,  organized  charities, 
daily  themes,  sesthetics,  history  of  art,  and  kindred  sub- 
jects. These  courses,  moreover,  are  offered,  as  our  kind 
critic  suggests  would  be  appropriate,  "  as  electives  of  equal 
value  with  literature  and  mathematics,  and  not  as  added 
burdens  to  overworked  students.'*  I  may  add  that  almost 
all  of  these  electives  attract  large  numbers  of  students.  At 
least  one  college  offers  a  course,  under  the  department  of 
philosophy,  in  the  study  of  child-nature;  and  the  same  col- 
lege has  a  course  devoted  to  a  study  of  the  organized  chari- 
ties of  the  city  in  which  it  is  situated.  That  the  head  of  the 
department  of  history  in  another  college  has  published  the 
most  important  book  of  the  present  day  on  "Domestic 
Service,"  goes  to  show  that  such  subjects  are  at  least  not 
despised  in  the  colleges  for  women.  I  do  not  present  these 
instances  as  evidence  that  all  the  work  done  in  women's 
colleges  is  differentiated  to  meet  the  special  needs  of 
women,  but  only  as  evidence,  so  far  as  it  goes,  that  there 
is  a  marked  tendency  in  that  direction.  I  question,  indeed, 
whether  the  colleges  are  not  moving  as  rapidly  in  this 
matter  as  the  public  can  follow  —  the  limit  of  any  reform, 
history  tells  us. 

To  the  second  charge,  "  Imitation  of  man,"  we  must 
again,  I  fear,  plead  guilty.  The  university  professor  who  is 
quoted  as  saying  that  "  the  women  will  not  have  any  im- 
provement; they  wish  just  the  same  education  as  the  col- 
lege men,  not  a  better  one,"  undoubtedly  voiced  the  ideal 
of  the  average  college  girl,  at  least  before  she  enters  col- 
lege.  But,  fortimately  for  her  and  for  her  womanhood,  she 


96  THE  BRIEF 

does  not,  in  most  colleges,  control  either  the  curriculum  or 
the  environment  of  four  of  the  most  impressionable  years 
of  life;  and  thus  environment,  in  spite  of  the  charge  brought 
against  it  of  '*  Lack  of  refining  influence  and  tendencies,"  is 
often  the  most  culturing  influence  of  her  life.  In  most  of 
the  leading  colleges  for  women,  art  and  music  are  recog- 
nized as  educational  forces,  and  more  or  less  provision  is 
made  for  them.  In  one  well-known  instance  the  school  of 
music  connected  with  the  college  is  so  managed  that  its 
concerts,  analysis  classes,  and  rehearsals  form  a  natural 
part  of  the  college  life.  The  same  college  has  a  fine  art- 
gallery,  and  frequent  talks  on  art  are  open  to  the  students. 
Most  colleges,  too,  provide  lectures  by  specialists  on  music, 
art,  and  literature.  Much  that  is  beautiful  in  life  comes 
thus  naturally  into  the  life  of  the  college  girl.  She  is,  more- 
over, surrounded  by  cultured  men  and  women,  in  spite, 
again,  of  the  indictment,  "  Lack  of  social  training."  If 

has  time  for  a  tour  of  the  colleges,  he  can  find  no 

better  refutation  of  his  theory  that  they  lack  refining  in- 
fluences than  the  students  themselves.  The  difference  be- 
tween the  senior  and  the  freshman  class  of  any  college 
is  one  of  the  marked  features  of  college  life;  that  in  wo- 
men's colleges  this  difference  is  chiefly  in  the  direction  of 
greater  womanliness  and  refinement  is  perhaps  sufficient 
evidence  of  the  influences  at  work.  Some  of  the  finest 
women  I  have  known  have  been  members  of  college  facul- 
ties. That  their  very  fineness  is  an  indirect  argument  for 
celibacy,  as  suggested,  is  perhaps  true.  But  why  assume, 
a  priori,  that  this  is  necessarily  a  misfortune?  When  I  was 
a  freshman  in  college,  I  remember,  the  wife  of  the  president 
called  individually  on  each  member  of  the  freshman  class. 
I  should  not  like  to  be  cited  as  maintaining  that  a  ten-min- 
utes social  call,  even  from  the  wife  of  a  college  president, 
would  leaven  the  four  years  of  college  life.  But  the  college 
that  can  thus  take  thought  for  its  freshmen  is  not  likely  to 


EDITORIALS  07 

neglect  entirely  the  social  graces  of  life.  Using  the  word 
social  in  its  broader  sense,  if  the  colleges  for  women  fail  to 
give  their  students  an  interest  in  the  problems  of  humanity, 
as  asserted,  is  it  not  a  little  singular  that  one  of  the  most 
effective  philanthropic  movements  of  the  day  should  be 
known  as  the  College  Settlement?  —  Jennette  Barbour 
Perry:  The  Critic^  September  11,  1897. 


98  THE  BRIEF 

2.  THE   COOPER  INSTITUTE  ADDRESS 

Delivered  by  Abraham  Lincoln  in  New  York  City,  February  27, 1860 

This  speech  was  delivered  by  Mr.  Lincoln  after  the  conclusion 
of  the  senatorial  campaign  in  Illinois,  during  which  the  debate 
with  Senator  Douglas  took  place  and  in  which  Mr.  Lincoln  was 
defeated.  The  address,  generally  considered  the  most  masterly 
presentation  of  the  anti-slavery  position  delivered  previous  to  the 
Civil  War,  was  made  in  response  to  a  request  that  Mr.  Lincoln 
speak  before  the  Young  Men's  Central  Republican  Union  of 
New  York  City,  and  it  afforded  him  his  first  opportunity  of 
appearing  before  an  Eastern  audience.  He  felt  serious  misgivings 
regarding  his  ability  to  address  such  an  audience  acceptably,  and 
suffered  from  all  the  miseries  of  personal  embarrassment.  As  he 
proceeded,  however,  his  self-consciousness  disappeared,  and  his 
hearers  followed  his  simple  but  effective  argument  with  the  in- 
terest and  absorption  that  only  the  master  of  forensic  oratory 
can  command. 

With  reference  to  this  speech  Horace  Greeley  wrote:  **I  do 
not  hesitate  to  pronounce  Mr.  Lincoln's  speech  at  Cooper  Insti- 
tute in  the  spring  of  1860  the  very  best  political  address  to  which 
I  ever  listened,  and  I  have  heard  some  of  Webster's  grandest. 
As  a  literary  effort,  it  would  not,  of  course,  bear  comparison  with 
many  of  Webster's  speeches;  but,  regarded  as  an  effort  to  con- 
vince the  largest  possible  number  that  they  ought  to  be  on  the 
speaker's  side,  not  on  the  other,  I  do  not  hesitate  to  pronounce 
it  unsurpassed." 

Mr.  President  and  Fellow-citizens  of  New  York: 

The  facts  with  which  I  shall  deal  this  evening  are  mainly 
old  and  familiar;  nor  is  there  anything  new  in  the  general 
use  I  shall  make  of  them.  If  there  shall  be  any  novelty,  it 
will  be  in  the  mode  of  presenting  the  facts,  and  the  infer- 
ences and  observations  following  that  presentation.  In  his 
speech  last  autumn  at  Columbus,  Ohio,  as  reported  in  the 
New  York  Times ,  Senator  Douglas  said :  — 

Our  fathers,  when  they  framed  the  government  under  which  we 
live,  understood  this  question  just  as  well,  and  even  better,  than 
we  do  now. 


THE  COOPER  INSTITUTE  ADDRESS  99 

1  fully  endorse  this,  and  I  adopt  it  as  a  text  for  this  dis- 
course. I  so  adopt  it  because  it  furnishes  a  precise  and 
an  agreed  starting-point  for  a  discussion  between  Repub- 
licans and  that  wing  of  the  Democracy  headed  by  Sena- 
tor Douglas.  It  simply  leaves  the  inquiry:  What  was  the 
understanding  those  fathers  had  of  the  question  men- 
tioned? 

What  is  the  frame  of  government  under  which  we  live? 
The  answer  must  be,  *'  The  Constitution  of  the  United 
States."  That  Constitution  consists  of  the  original,  framed 
in  1787,  and  under  which  the  present  government  first  went 
into  operation,  and  twelve  subsequently  framed  amend- 
ments, the  first  ten  of  which  were  framed  in  1789. 

Who  were  our  fathers  that  framed  the  Constitution?  I 
suppose  the  "  thirty-nine  "  who  signed  the  original  instru- 
ment may  be  fairly  called  our  fathers  who  framed  that  part 
of  the  present  government.  It  is  almost  exactly  true  to  say 
they  framed  it,  and  it  is  altogether  true  to  say  they  fairly 
represented  the  opinion  and  sentiment  of  the  whole  nation 
at  that  time.  Their  names,  being  familiar  to  nearly  all,  and 
accessible  to  quite  all,  need  not  now  be  repeated. 

I  take  these  *'  thirty-nine,"  for  the  present,  as  being  "our 
fathers  who  framed  the  government  under  which  we  live." 
What  is  the  question  which,  according  to  the  text,  those 
fathers  understood  "just  as  well,  and  even  better,  than  we 
do  now"? 

It  is  this :  Does  the  proper  division  of  local  from  Federal 
authority,  or  anything  in  the  Constitution,  forbid  our 
Federal  Government  to  control  as  to  slavery  in  our  Federal 
Territories? 

Upon  this.  Senator  Douglas  holds  the  affirmative,  and 
Republicans  the  negative.  This  affirmation  and  denial  form 
an  issue;  and  this  issue  —  this  question  —  is  precisely  what 
the  text  declares  our  fathers  understood  "better  than  we." 
Let  us  now  inquire  whether  the  "thirty-nine,"  or  any  of 


100  THE  BRIEF 

them,  ever  acted  upon  this  question;  and  if  they  did,  how 
they  acted  upon  it  —  how  they  expressed  that  better  un- 
derstanding. In  1784,  three  years  before  the  Constitution, 
the  United  States  then  owning  the  Northwestern  Territory, 
and  no  other,  the  Congress  of  the  Confederation  had  before 
them  the  question  of  prohibiting  slavery  in  that  Territory, 
and  four  of  the  "thirty-nine"  who  afterward  framed  the 
Constitution  were  in  that  Congress,  and  voted  on  that 
question.  Of  these,  Roger  Sherman,  Thomas  Mifflin,  and 
Hugh  WilHamson  voted  for  the  prohibition,  thus  showing 
that,  in  their  understanding,  no  Hue  dividing  local  from 
Federal  authority,  nor  anything  else,  properly  forbade  the 
Federal  Government  to  control  as  to  slavery  in  Federal 
territory.  The  other  of  the  four,  James  McHenry,  voted 
against  the  prohibition,  showing  that  for  some  cause  he 
thought  it  improper  to  vote  for  it. 

In  1787,  still  before  the  Constitution,  but  while  the  con- 
vention was  in  session  framing  it,  and  while  the  North- 
western Territory  still  was  the  only  Territory  owned  by 
the  United  States,  the  same  question  of  prohibiting  slavery 
in  the  Territory  again  came  before  the  Congress  of  the  Con- 
federation; and  two  more  of  the  "thirty-nine"  who  after- 
ward signed  the  Constitution  were  in  that  Congress,  and 
voted  on  the  question.  They  were  William  Blount  and 
William  Few;  and  they  both  voted  for  the  prohibition  — ■ 
thus  showing  that  in  their  understanding  no  line  dividing 
local  from  Federal  authority,  nor  anything  else,  properly 
forbade  the  Federal  Government  to  control  as  to  slavery  in 
Federal  territory.  This  time  the  prohibition  became  a  law, 
being  part  of  what  is  now  well  known  as  the  Ordinance 
of  '87. 

The  question  of  Federal  control  of  slavery  in  the  Terri- 
tories seems  not  to  have  been  directly  before  the  conven- 
tion which  framed  the  original  Constitution;  and  hence  it  is 
not  recorded  that  the  "thirty-nine,"  or  any  of  them,  while 


THE  COOPER  INSTITUTE  ADDI^iE^S,  ; .,  :l^,i 

engaged  on  that  instrument,  expressed  any  opinion  on  that 
precise  question. 

In  1789,  by  the  first  Congress  which  sat  under  the  Con- 
stitution, an  act  was  passed  to  enforce  the  Ordinance  of  '87, 
including  the  prohibition  of  slavery  in  the  Northwestern 
Territory.  The  bill  for  this  act  was  reported  by  one  of  the 
"thirty-nine"  —  Thomas  Fitzsimmons,  then  a  member  of 
the  House  of  Representatives  from  Pennsylvania.  It  went 
through  all  its  stages  without  a  word  of  opposition,  and 
finally  passed  both  branches  without  ayes  and  nays,  which 
is  equivalent  to  a  unanimous  passage.  In  this  Congress 
there  were  sixteen  of  the  thirty-nine  fathers  who  framed 
the  original  Constitution.  They  were  John  Langdon, 
Nicholas  Oilman,  Wm.  S.  Johnson,  Roger  Sherman,  Robert 
Morris,  Thomas  Fitzsimmons,  Abraham  Baldwin,  William 
Few,  Rufus  King,  William  Patterson,  George  Clymer, 
Richard  Bassett,  George  Read,  Pierce  Butler,  Daniel  Car- 
roll, and  James  Madison. 

This  shows  that,  in  their  understanding,  no  line  dividing 
local  from  Federal  authority,  nor  anything  in  the  Constitu- 
tion, properly  forbade  Congress  to  prohibit  slavery  in  the 
Federal  territory;  else  both  their  fidelity  to  correct  princi- 
ple, and  their  oath  to  support  the  Constitution,  would  have 
constrained  them*  to  oppose  the  prohibition. 

Again,  George  Washington,  another  of  the  "thirty- 
nine,"  was  then  President  of  the  United  States,  and  as  such 
approved  and  signed  the  bill,  thus  completing  its  validity 
as  a  law,  and  thus  showing  that,  in  his  understanding,  no 
line  dividing  local  from  Federal  authority,  nor  anything  in 
the  Constitution,  forbade  the  Federal  Government  to  con- 
trol as  to  slavery  in  Federal  territory. 

No  great  while  after  the  adoption  of  the  original  Consti- 
tution, North  Carolina  ceded  to  the  Federal  Government 
the  country  now  constituting  the  State  of  Tennessee;  and  a 
few  years  later  Georgia  ceded  that  which  now  constitutes 


^Q2^   ;,     ::  V  THE  BRIEF 

the  States  of  Mississippi  and  Alabama.  In  both  deeds  of 
cession  it  was  made  a  condition  by  the  ceding  States  that 
the  Federal  Government  should  not  prohibit  slavery  in  the 
ceded  country.  Besides  this,  slavery  was  then  actually  in 
the  ceded  country.  Under  these  circumstances,  Congress, 
on  taking  charge  of  these  countries,  did  not  absolutely  pro- 
hibit slavery  within  them.  But  they  did  interfere  with  it  — 
take  control  of  it  —  even  there,  to  a  certain  extent.  In  1798 
Congress  organized  the  Territory  of  Mississippi.  In  the  act 
of  organization  they  prohibited  the  bringing  of  slaves  into 
the  Territory  from  any  place  without  the  United  States, 
by  fine,  and  giving  freedom  to  slaves  so  brought.  This  act 
passed  both  branches  of  Congress  without  yeas  and  nays. 
In  that  Congress  were  three  of  the  "thirty-nine"  who 
framed  the  original  Constitution.  They  were  John  Lang- 
don,  George  Read,  and  Abraham  Baldwin.  They  all  prob- 
ably voted  for  it.  Certainly  they  would  have  placed  their 
opposition  to  it  upon  record  if,  in  their  understanding,  any 
line  dividing  local  from  Federal  authority,  or  anything  in 
the  Constitution,  properly  forbade  the  Federal  Government 
to  control  as  to  slavery  in  Federal  Territory. 

In  1803,  the  Federal  Government  purchased  the  Louisi- 
ana country.  Our  former  territorial  acquisitions  came  from 
certain  of  our  own  States;  but  this  Louisiana  country  was 
acquired  from  a  foreign  nation.  In  1804,  Congress  gave  a 
territorial  organization  to  that  part  of  it  which  now  con- 
stitutes the  State  of  Louisiana.  New  Orleans,  lying  within 
that  part,  was  an  old  and  comparatively  large  city.  There 
were  other  considerable  towns  and  settlements,  and  slav- 
ery was  extensively  and  thoroughly  intermingled  with  the 
people.  Congress  did  not,  in  the  Territorial  Act,  prohibit 
slavery;  but  they  did  interfere  with  it  —  take  control  of 
it  —  in  a  more  marked  and  extensive  way  than  they  did 
in  the  case  of  Mississippi.  The  substance  of  the  provision 
therein  made  in  relation  to  slaves  was: 


THE  COOPER  INSTITUTE  ADDRESS  103 

1st.  That  no  slave  should  be  imported  into  the  Territory 
from  foreign  parts. 

2d,  That  no  slave  should  be  carried  into  it  who  had  been 
imported  into  the  United  States  since  the  first  day  of 
May,  1798. 

3d.  That  no  slave  should  be  carried  into  it,  except  by 
the  owner,  and  for  his  own  use  as  a  settler;  the  penalty  in 
all  cases  being  a  fine  upon  the  violator  of  the  law,  and  free- 
dom to  the  slave. 

This  act  also  was  passed  without  ayes  or  nays.  In  the 
Congress  which  passed  it  there  were  two  of  the  "thirty- 
nine."  They  were  Abraham  Baldwin  and  Jonathan  Dayton. 
As  stated  in  the  case  of  Mississippi,  it  is  probable  they  both 
voted  for  it.  They  would  not  have  allowed  it  to  pass  with- 
out recording  their  opposition  to  it  if,  in  their  understand- 
ing, it  violated  either  the  line  properly  dividing  local  from 
Federal  authority,  or  any  provision  of  the  Constitution. 

In  1819-20  came  and  passed  the  Missouri  question. 
Many  votes  were  taken,  by  yeas  and  nays,  in  both  branches 
of  Congress,  upon  the  various  phases  of  the  general  ques- 
tion. Two  of  the  "thirty-nine  "  —  Rufus  King  and  Charles 
Pinckney  —  were  members  of  that  Congress.  Mr.  King 
steadily  voted  for  slavery  prohibition  and  against  all  com- 
promises, while  Mr.  Pinckney  as  steadily  voted  against 
slavery  prohibition  and  against  all  compromises.  By  this, 
Mr.  King  showed  that,  in  his  understanding,  no  line  divid- 
ing local  from  Federal  authority,  nor  anything  in  the  Con- 
stitution, was  violated  by  Congress  prohibiting  slavery  in 
Federal  territory;  while  Mr.  Pinckney,  by  his  votes,  showed 
that,  in  his  understanding,  there  was  some  sufficient  reason 
for  opposing  such  prohibition  in  that  case. 

The  cases  I  have  mentioned  are  the  only  acts  of  the 
"thirty-nine,"  or  of  any  of  them,  upon  the  direct  issue, 
which  I  have  been  able  to  discover. 

To  enumerate  the  persons  who  thus  acted  as  being  four 


104  THE  BRIEF 

in  1784,  two  in  1787,  seventeen  in  1789,  three  in  1798,  two 
in  1804,  and  two  in  1819-20,  there  would  be  thirty  of  th-em. 
But  this  would  be  counting  John  Langdon,  Roger  Sherman, 
William  Few,  Rufus  King,  and  George  Read  each  twice, 
and  Abraham  Baldwin  three  times.  The  true  number  of 
those  of  the  "thirty-nine  "  whom  I  have  shown  to  have 
acted  upon  the  question  which,  by  the  text,  they  under- 
stood better  than  we,  is  twenty-three,  leaving  sixteen  not 
shown  to  have  acted  upon  it  in  any  way. 

Here,  then,  we  have  twenty-three  out  of  our  thirty-iiine 
fathers  '*  who  framed  the  government  under  which  we  live," 
who  have,  upon  their  official  responsibility  and  their  cor- 
poral oaths,  acting  upon  the  very  question  which  the  text 
affirms  they  "understood  just  as  well,  and  even  better,  than 
we  do  now  " ;  and  twenty-one  of  them  —  a  clear  majority  of 
the  whole  "thirty-nine  "  —  so  acting  upon  it  as  to  make 
them  guilty  of  gross  political  impropriety  and  wilful  per- 
jury if,  in  their  understanding,  any  proper  division  between 
local  and  Federal  authority,  or  anything  in  the  Constitution 
they  had  made  themselves,  and  sworn  to  support,  forbade 
the  Federal  Government  to  control  as  to  slavery  in  the 
Federal  Territories.  Thus  the  twenty-one  acted;  and,  as 
actions  speak  louder  than  words,  so  actions  under  such 
responsibility  speak  still  louder. 

Two  of  the  twenty-three  voted  against  Congressional 
prohibition  of  slavery  in  the  Federal  Territories,  in  the  in- 
stances in  which  they  acted  upon  the  question.  But  for 
what  reasons  they  so  voted  is  not  known.  They  may  have 
done  so  because  they  thought  a  proper  division  of  local 
from  Federal  authority,  or  some  provision  or  principle  of 
the  Constitution,  stood  in  the  way;  or  they  may,  without 
any  such  question,  have  voted  against  the  prohibition  on 
what  appeared  to  them  to  be  sufficient  grounds  of  expedi- 
ency. No  one  who  has  sworn  to  support  the  Constitution 
can  conscientiously  vote  for  what  he  understands  to  be  an 


THE  COOPER  INSTITUTE  ADDRESS  105 

unconstitutional  measure,  however  expedient  he  may  think 
it;  but  one  may  and  ought  to  vote  against  a  measure  which 
he  deems  constitutional  if,  at  the  same  time,  he  deems  it 
inexpedient.  It,  therefore,  would  be  unsafe  to  set  down 
even  the  two  who  voted  against  the  prohibition  as  having 
done  so  because,  in  their  understanding,  any  proper  divi- 
sion of  local  from  Federal  authority,  or  anything  in  the 
Constitution,  forbade  the  Federal  Government  to  control 
as  to  slavery  in  Federal  territory. 

The  remaining  sixteen  of  the  "thirty-nine,"  so  far  as  I 
have  discovered,  have  left  no  record  of  their  understanding 
upon  the  direct  question  of  Federal  control  of  slavery  in 
the  Federal  Territories.  But  there  is  much  reason  to  believe 
that  their  understanding  upon  that  question  would  not 
have  appeared  different  from  that  of  their  twenty-three 
compeers,  had  it  been  manifested  at  all. 

For  the  purpose  of  adhering  rigidly  to  the  text,  I  have 
purposely  omitted  whatever  understanding  may  have  been 
manifested  by  any  person,  however  distinguished,  other 
than  the  thirty-nine  fathers  who  framed  the  original  Con- 
stitution; and,  for  the  same  reason,  I  have  also  omitted 
whatever  understanding  may  have  been  manifested  by  any 
of  the  "thirty-nine  "  even  on  any  other  phase  of  the  general 
question  of  slavery.  If  we  should  look  into  their  acts  and 
declarations  on  those  other  phases,  as  the  foreign  slave- 
trade,  and  the  morality  and  policy  of  slavery  generally,  it 
would  appear  to  us  that  on  the  direct  question  of  Federal 
control  of  slavery  in  Federal  Territories,  the  sixteen,  if  they 
had  acted  at  all,  would  probably  have  acted  just  as  the 
twenty-three  did.  Among  that  sixteen  were  several  of  the 
most  noted  anti-slavery  men  of  those  times  —  Dr.  Frank- 
lin, Alexander  Hamilton,  and  Gouverneur  Morris  —  while 
there  was  not  one  now  known  to  have  been  otherwise, 
unless  it  may  be  John  Rutledge,  of  South  Carolina. 

The  sum  of  the  whole  is  that  of  our  thirty-nine  fathers 


106  THE  BRIEF 

who  framed  the  original  Constitution,  twenty-one  —  a 
clear  majority  of  the  whole  —  certainly  understood  that  no 
proper  division  of  local  from  Federal  authority,  nor  any 
part  of  the  Constitution,  forbade  the  Federal  Government 
to  control  slavery  in  the  Federal  Territories;  while  all  the 
rest  had  probably  the  same  understanding.  Such,  unques- 
tionably, was  the  understanding  of  our  fathers  who  framed 
the  original  Constitution;  and  the  text  affirms  that  they 
understood  the  question  "better  than  we." 

But,  so  far,  I  have  been  considering  the  understanding 
of  the  question  manifested  by  the  framers  of  the  original 
Constitution.  In  and  by  the  original  instrument,  a  mode 
was  provided  for  amending  it;  and,  as  I  have  already 
stated,  the  present  frame  of  "the  government  under  which 
we  live"  consists  of  that  original,  and  twelve  amendatory 
articles  framed  and  adopted  since.  Those  who  now  insist 
that  Federal  control  of  slavery  in  Federal  Territories  violates 
the  Constitution,  point  us  to  the  provisions  which  they  sup- 
pose it  thus  violates;  and,  as  I  understand,  they  all  fix  upon 
provisions  in  these  amendatory  articles,  and  not  in  the  origi- 
nal instrument.  The  Supreme  Court,  in  the  Dred  Scott  case, 
plant  themselves  upon  the  fifth  amendment,  which  provides 
that  no  person  shall  be  deprived  of  "life,  liberty,  or  prop- 
erty without  due  process  of  law";  while  Senator  Douglas 
and  his  peculiar  adherents  plant  themselves  upon  the  tenth 
amendment,  providing  that  "the  powers  not  delegated  to 
the  United  States  by  the  Constitution"  "are  reserved  to 
the  States  respectively,  or  to  the  people." 

Now  it  so  happens  that  these  amendments  were  framed 
by  the  first  Congress  which  sat  under  the  Constitution  — 
the  identical  Congress  which  passed  the  act,  already  men- 
tioned, enforcing  the  prohibition  of  slavery  in  the  North- 
western Territory.  Not  only  was  it  the  same  Congress,  but 
they  were  the  identical,  same  individual  men  who,  at  the 
same  session,  and  at  the  same  time  within  the  session,  had 


THE  COOPER  INSTITUTE  ADDRESS  107 

under  consideration,  and  in  progress  toward  maturity,  these 
constitutional  amendments,  and  this  act  prohibiting  slav- 
ery in  all  the  territory  the  nation  then  owned.  The  consti- 
tutional amendments  were  introduced  before,  and  passed 
after  the  act  enforcing  the  Ordinance  of  '87;  so  that,  during 
the  whole  pendency  of  the  act  to  enforce  the  Ordinance,  the 
constitutional  amendments  were  also  pending. 

The  seventy-six  members  of  that  Congress,  including  six- 
teen of  the  framers  of  the  original  Constitution,  as  before 
stated,  were  pre-eminently  our  fathers  who  framed  that 
part  of  "  the  government  under  which  we  live,"  which  is  now 
claimed  as  forbidding  the  Federal  Government  to  control 
slavery  in  the  Federal  Territories. 

Is  it  not  a  little  presumptuous  in  anyone  at  this  day  to 
affirm  that  the  two  things  which  that  Congress  deliberately 
framed,  and  carried  to  maturity  at  the  same  time,  are  ab- 
solutely inconsistent  with  each  other  .^^  And  does  not  such 
affirmation  become  impudently  absurd  when  coupled  with 
the  other  affirmation,  from  the  same  mouth,  that  those  who 
did  the  two  things  alleged  to  be  inconsistent,  understood 
whether  they  really  were  inconsistent  better  than  we  — 
better  than  he  who  affirms  that  they  are  inconsistent? 

It  is  surely  safe  to  assume  that  the  thirty-nine  framers  of 
the  original  Constitution,  and  the  seventy-six  members  of 
the  Congress  which  framed  the  amendments  thereto,  taken 
together,  do  certainly  include  those  who  may  be  fairly 
called  "our  fathers  who  framed  the  government  under 
which  we  live."  And  so  assuming,  I  defy  any  man  to  show 
that  any  one  of  them  ever,  in  his  whole  life,  declared  that,  in 
his  understanding,  any  proper  division  of  local  from  Federal 
authority,  or  any  part  of  the  Constitution,  forbade  the  Fed- 
eral Government  to  control  as  to  slavery  in  the  Federal 
Territories.  I  go  a  step  further.  I  defy  anyone  to  show  that 
any  living  man  in  the  world  ever  did,  prior  to  the  beginning 
of  the  present  century  (and  I  might  almost  say  prior  to  the 


108  THE  BRIEF 

beginning  of  the  last  half  of  the  present  century),  declare 
that,  in  his  understanding,  any  proper  division  of  local 
from  Federal  authority,  or  any  part  of  the  Constitution, 
forbade  the  Federal  Government  to  control  as  to  slavery 
in  the  Federal  Territories.  To  those  who  now  so  declare  I 
give  not  only  "our  fathers  who  framed  the  government 
under  which  we  live,"  but  with  them  all  other  living  men 
within  the  century  in  which  it  was  framed,  among  whom  to 
search,  and  they  shall  not  be  able  to  find  the  evidence  of  a 
single  man  agreeing  with  them. 

Now,  and  here,  let  me  guard  a  little  against  being  mis- 
understood. I  do  not  mean  to  say  we  are  bound  to  follow 
implicitly  in  whatever  our  fathers  did.  To  do  so  would  be 
to  discard  all  the  lights  of  current  experience  —  to  reject  all 
progress,  all  improvement.  What  I  do  say  is  that  if  we 
would  supplant  the  opinions  and  policy  of  our  fathers  in 
any  case,  we  should  do  so  upon  evidence  so  conclusive,  and 
argument  so  clear,  that  even  their  great  authority,  fairly 
considered  and  weighed,  cannot  stand;  and  most  surely  not 
in  a  case  whereof  we  ourselves  declare  they  understood  the 
question  better  than  we. 

If  any  man  at  this  day  sincerely  believes  that  a  proper 
division  of  local  from  Federal  authority,  or  any  part  of  the 
Constitution,  forbids  the  Federal  Government  to  control 
as  to  slavery  in  the  Federal  Territories,  he  is  right  to  say  so, 
and  to  enforce  his  position  by  all  truthful  evidence  and  fair 
argument  which  he  can.  But  he  has  no  right  to  mislead 
others,  who  have  less  access  to  history,  and  less  leisure  to 
study  it,  into  the  false  belief  that  "our  fathers  who  framed 
the  government  under  which  we  live"  were  of  the  same 
opinion  —  thus  substituting  falsehood  and  deception  for 
truthful  evidence  and  fair  argument.  If  any  man  at  this 
day  sincerely  believes  "our  fathers  who  framed  the  govern- 
ment under  which  we  live"  used  and  applied  principles,  in 
other  cases,  which  ought  to  have  led  them  to  understand 


THE  COOPER  INSTITUTE  ADDRESS  109 

that  a  proper  division  of  local  from  Federal  authority,  or 
some  part  of  the  Constitution,  forbids  the  Federal  Govern- 
ment to  control  as  to  slavery  in  the  Federal  Territories,  he 
is  right  to  say  so.  But  he  should,  at  the  same  time,  brave 
the  responsibility  of  declaring  that,  in  his  opinion,  he  un- 
derstands their  principles  better  than  they  did  themselves; 
and  especially  should  he  not  shirk  that  responsibility  by 
asserting  that  they  "understood  the  question  just  as  well, 
and  even  better,  than  we  do  now." 

But  enough!  Let  all  who  believe  that  "our  fathers  who 
framed  the  government  under  which  we  live  understood 
this  question  just  as  well,  and  even  better,  than  we  do 
now,"  speak  as  they  spoke,  and  act  as  they  acted  upon  it. 
This  is  all  Republicans  ask  —  all  Republicans  desire  —  in 
relation  to  slavery.  As  those  fathers  marked  it,  so  let  it  be 
again  marked,  as  an  evil  not  to  be  extended,  but  to  be 
tolerated  and  protected  only  because  of  and  so  far  as  its 
actual  presence  amongst  us  makes  that  toleration  and  pro- 
tection a  necessity.  -Let  all  the  guaranties  those  fathers 
gave  it  be  not  grudgingly,  but  fully  and  fairly  maintained. 
For  this  Republicans  contend,  and  with  this,  so  far  as  I 
know  or  believe,  they  will  be  content. 

And  now,  if  they  would  listen  —  as  I  suppose  they  will 
not  —  I  would  address  a  few  words  to  the  Southern  people. 

I  would  say  to  them:  You  consider  yourselves  a  reason- 
able and  a  just  people;  and  I  consider  that  in  the  general 
qualities  of  reason  and  justice  you  are  not  inferior  to  any 
other  people.  Still,  when  you  speak  of  us  Republicans,  you 
do  so  only  to  denounce  us  as  reptiles,  or,  at  the  best,  as  no 
better  than  outlaws.  You  will  grant  a  hearing  to  pirates  or 
murderers,  but  nothing  like  it  to  "Black  Republicans."  In 
all  your  contentions  with  one  another,  each  of  you  deems 
an  unconditional  condemnation  of  "  Black  Republicanism," 
as  the  first  thing  to  be  attended  to.  Indeed,  such  con- 
demnation of  us  seems  to  be  an  indispensable  prerequisite 


110  THE  BRIEF 

—  license,  so  to  speak  —  among  you  to  be  admitted  or  per- 
mitted to  speak  at  all.  Now  can  you  or  not  be  prevailed 
upon  to  pause  and  to  consider  whether  this  is  quite  just  to 
us,  or  even  to  yourselves?  Bring  forward  your  charges  and 
specifications,  and  then  be  patient  long  enough  to  hear  us 
deny  or  justify. 

You  say  we  are  sectional.  We  deny  it.  That  makes  an 
issue;  and  the  burden  of  proof  is  upon  you.  You  produce 
your  proof;  and  what  is  it.f^  Why,  that  our  party  has  no 
existence  in  your  section  —  gets  no  votes  in  your  section. 
The  fact  is  substantially  true;  but  does  it  prove  the  issue? 
If  it  does,  then  in  case  we  should,  without  change  of  prin- 
ciple, begin  to  get  votes  in  your  section,  we  should  thereby 
cease  to  be  sectional.  You  cannot  escape  this  conclusion; 
and  yet,  are  you  willing  to  abide  by  it?  If  you  are,  you  will 
probably  soon  find  that  we  have  ceased  to  be  sectional,  for 
we  shall  get  votes  in  your  section  this  very  year.  You  will 
then  begin  to  discover,  as  the  truth  plainly  is,  that  your 
proof  does  not  touch  the  issue.  The  fact  that  we  get  no 
votes  in  your  section  is  a  fact  of  your  making,  and  not  of 
ours.  And  if  there  be  fault  in  that  fact,  that  fault  is  pri- 
marily yours,  and  remains  so  until  you  show  that  we  repel 
you  by  some  wrong  principle  or  practice.  If  we  do  repel  you 
by  any  wrong  principle  or  practice,  the  fault  is  ours;  but 
this  brings  you  to  where  you  ought  to  have  started  —  to  a 
discussion  of  the  right  or  wrong  of  our  principle.  If  our 
principle,  put  in  practice,  would  wrong  your  section  for  the 
benefit  of  ours,  or  for  any  other  object,  then  our  principle, 
and  we  with  it,  are  sectional,  and  are  justly  opposed  and 
denounced  as  such.  Meet  us,  then,  on  the  question  of 
whether  our  principle,  put  in  practice,  would  wrong  your 
section;  and  so  meet  us  as  if  it  were  possible  that  something 
may  be  said  on  your  side.  Do  you  accept  the  challenge? 
No !  Then  you  really  believe  that  the  principle  which  "  our 
fathers  who  framed  the  government  under  which  we  live" 


THE  COOPER  INSTITUTE  ADDRESS  111 

thought  so  clearly  right  as  to  adopt  it,  and  indorse  it  again 
and  again,  upon  their  official  oaths,  is  in  fact  so  clearly 
wrong  as  to  demand  your  condemnation  without  a  mo- 
ment's consideration. 

Some  of  you  delight  to  flaunt  in  our  faces  the  warning 
against  sectional  parties  given  by  Washington  in  his  Fare- 
well Address.  Less  than  eight  years  before  Washington 
gave  that  warning,  he  had,  as  President  of  the  United  States, 
approved  and  signed  an  act  of  Congress  enforcing  the  pro- 
hibition of  slavery  in  the  Northwestern  Territory,  which 
act  embodied  the  policy  of  the  government  upon  that  sub- 
ject up  to  and  at  the  very  moment  he  penned  that  warning; 
and  about  one  year  after  he  penned  it,  he  wrote  Lafayette 
that  he  considered  that  prohibition  a  wise  measure,  express- 
ing in  the  same  connection  his  hope  that  we  should  at  some 
time  have  a  confederacy  of  free  States. 

Bearing  this  in  mind,  and  seeing  that  sectionalism  has 
since  arisen  upon  this  same  subject,  is  that  warning  a 
weapon  in  your  hands  against  us,  or  in  our  hands  against 
you?  Could  Washington  himself  speak,  would  he  cast  the 
blame  of  that  sectionalism  upon  us,  who  sustain  his  policy, 
or  upon  you,  who  repudiate  it.^  We  respect  that  warning  of 
Washington,  and  we  commend  it  to  you,  together  with  his 
example  pointing  to  the  right  application  of  it. 

But  you  say  you  are  conservative  —  eminently  conserva- 
tive —  while  we  are  revolutionary,  destructive,  or  some- 
thing of  the  sort.  What  is  conservatism  .f^  Is  it  not  adher- 
ence to  the  old  and  tried,  against  the  new  and  untried?  We 
stick  to,  contend  for,  the  identical  old  policy  on  the  point 
in  controversy  which  was  adopted  by  "our  fathers  who 
framed  the  government  under  which  we  live";  while  you 
with  one  accord  reject,  and  scout,  and  spit  upon  that  old 
policy,  and  insist  upon  substituting  something  new.  True, 
you  disagree  among  yourselves  as  to  what  that  substitute 
shall  be.  You  are  divided  on  new  propositions  and  plans. 


112  THE  BRIEF 

but  you  are  unanimous  in  rejecting  and  denouncing  the  old 
policy  of  the  fathers.  Some  of  you  are  for  reviving  the 
foreign  slave-trade;  some  for  a  Congressional  slave  code  for 
the  Territories;  some  for  Congress  forbidding  the  Terri- 
tories to  prohibit  slavery  within  their  limits;  some  for  main- 
taining slavery  in  the  Territories  through  the  judiciary; 
some  for  the  "  gur-reat  pur-rinciple  "  that  "  if  one  man  would 
enslave  another,  no  third  man  should  object,"  fantastically 
called  "popular  sovereignty,"  but  never  a  man  among  you 
is  in  favor  of  Federal  prohibition  of  slavery  in  Federal 
Territories,  according  to  the  practice  of  "our  fathers  who 
framed  the  government  under  which  we  live."  Not  one  of 
all  your  various  plans  can  show  a  precedent  or  an  advocate 
in  the  century  within  which  our  government  originated. 
Consider,  then,  whether  your  claim  of  conservatism  for 
yourselves,  and  your  charge  of  destructiveness  against  us, 
are  based  on  the  most  clear  and  stable  foundations. 

And  again,  you  say  we  have  made  the  slavery  question 
more  prominent  than  it  formerly  was.  We  deny  it.  We 
admit  that  it  is  more  prominent,  but  we  deny  that  we  made 
it  so.  It  was  not  we,  but  you,  who  discarded  the  old  policy 
of  the  fathers.  We  resisted,  and  still  resist,  your  innova- 
tion; and  thence  comes  the  greater  prominence  of  the 
question.  Would  you  have  that  question  reduced  to  its 
former  proportions.?  Go  back  to  that  old  policy.  What  has 
been  will  be  again,  under  the  same  conditions.  If  you 
would  have  the  peace  of  the  old  times,  re-adopt  the  precepts 
and  policy  of  the  old  times. 

You  charge  that  we  stir  up  insurrections  among  your 
slaves.  We  deny  it;  and  what  is  your  proof.?  Harper's 
Ferry!  John  Brown!  !  John  Brown  was  no  Republican; 
and  you  have  failed  to  implicate  a  single  Republican  in  his 
Harper's  Ferry  enterprise.  If  any  member  of  our  party  is 
guilty  in  that  matter,  you  know  it  or  you  do  not  know  it. 
If  you  do  know  it,  you  are  inexcusable  for  not  designating 


THE  COOPER  INSTITUTE  ADDRESS  113 

the  man  and  proving  the  fact.  If  you  do  not  know  it,  you 
are  inexcusable  for  asserting  it,  and  especially  for  persisting 
in  the  assertion  after  you  have  tried  and  failed  to  make 
the  proof.  You  need  not  be  told  that  persisting  in  a  charge 
which  one  does  not  know  to  be  true  is  simply  malicious 
slander. 

Some  of  you  admit  that  no  Republican  designedly  aided 
or  encouraged  the  Harper's  Ferry  affair,  but  still  insist  that 
our  doctrines  and  declarations  necessarily  lead  to  such 
results.  We  do  not  believe  it.  We  know  we  hold  no  doc- 
trine, and  make  no  declaration  which  were  not  held  to  and 
made  by  "our  fathers  who  framed  the  government  under 
which  we  live."  You  never  dealt  fairly  by  us  in  relation  to 
this  affair.  When  it  occurred,  some  important  State  elec- 
tions were  near  at  hand,  and  you  were  in  evident  glee  with 
the  belief  that,  by  charging  the  blame  upon  us,  you  could 
get  an  advantage  of  us  in  those  elections.  The  elections 
cg,me,  and  your  expectations  were  not  quite  fulfilled.  Every 
Republican  man  knew  that,  as  to  himself  at  least,  your 
charge  was  a  slander,  and  he  was  not  much  inclined  by  it 
to  cast  his  vote  in  your  favor.  Republican  doctrines  and 
declarations  are  accompanied  with  a  continual  protest 
against  any  interference  whatever  with  your  slaves,  or  with 
you  about  your  slaves.  Surely,  this  does  not  encourage 
them  to  revolt.  True,  we  do,  in  common  with  "our  fathers 
who  framed  the  government  under  which  we  live,"  declare 
our  belief  that  slavery  is  wrong;  but  the  slaves  do  not  hear 
us  declare  even  this.  For  anything  we  say  or  do,  the  slaves 
would  scarcely  know  there  is  a  Republican  party.  I  believe 
they  would  not,  in  fact,  generally  know  it  but  for  your  mis- 
representations of  us  in  their  hearing.  In  your  political 
contests  among  yourselves  each  faction  charges  the  other 
with  sympathy  with  Black  Republicanism;  and  then,  to  give 
point  to  the  charge,  defines  Black  Republicanism  to  simply 
be  insurrection,  blood,  and  thunder  among  the  slaves. 


114  THE  BRIEF 

Slave  insurrections  are  no  more  common  now  than  they 
were  before  the  RepubUcan  party  was  organized.  What 
induced  the  Southampton  insurrection/  twenty-eight  years 
ago,  in  which  at  least  three  times  as  many  lives  were  lost 
as  at  Harper's  Ferry?  You  can  scarcely  stretch  your  very 
elastic  fancy  to  the  conclusion  that  Southampton  was 
"got  up  by  Black  Republicanism."  In  the  present  state  of 
things  in  the  United  States,  I  do  not  think  a  general,  or 
even  a  very  extensive,  slave  insurrection  is  possible.  The 
indispensable  concert  of  action  cannot  be  attained.  The 
slaves  have  no  means  of  rapid  communication;  nor  can 
incendiary  freeman,  black  or  white,  supply  it.  The  explo- 
sive materials  are  everywhere  in  parcels;  but  there  neither 
are,  nor  can  be  supplied,  the  indispensable  connecting 
trains. 

Much  is  said  by  Southern  people  about  the  affection  of 
slaves  for  their  masters  and  mistresses;  and  a  part  of  it,  at 
least,  is  true.  A  plot  for  an  uprising  could  scarcely  be  de- 
vised and  communicated  to  twenty  individuals  before  some 
one  of  them,  to  save  the  life  of  a  favorite  master  or  mistress, 
would  divulge  it.  This  is  the  rule;  and  the  slave  revolution 
in  Hayti  ^  was  not  an  exception  to  it,  but  a  case  occurring 
under  peculiar  circumstances.  The  Gunpowder  Plot  of 
British  history,  though  not  connected  with  slaves,  was  more 
in  point.  In  that  case,  only  about  twenty  were  admitted  to 
the  secret;  and  yet  one  of  them,  in  his  anxiety  to  save  a 
friend,  betrayed  the  plot  to  that  friend,  and,  by  conse- 
quence, averted  the  calamity.  Occasional  poisonings  from 
the  kitchen,  and  open  or  stealthy  assassinations  in  the  field, 
and  local  revolts  extending  to  a  score  or  so,  will  continue  to 

1  An  uprising  of  slaves  occurred  at  Southampton,  Virginia,  in  1831, 
and  a  number  of  white  persons  lost  their  lives. 

2  Bloody  and  revolutionary  slave  insurrections  took  place  in  Hayti 
from  1790  to  1793.  The  negroes  under  the  leadership  of  the  famous 
Toussaint  I'Ouverture  ultimately  secured  the  supremacy,  and  the  island 
declared  its  independence  as  a  republic  in  1801. 


THE  COOPER  INSTITUTE  ADDRESS  115 

occur  as  the  natural  results  of  slavery;  but  no  general  in- 
surrection of  slaves,  as  I  think,  can  happen  in  this  country 
for  a  long  time.  Whoever  much  fears,  or  much  hopes  for, 
such  an  event  will  be  alike  disappointed. 

In  the  language  of  Mr.  Jefferson,  uttered  many  years 
ago,  "It  is  still  in  our  power  to  direct  the  process  of  eman- 
cipation and  deportation  peaceably,  and  in  such  slow  de- 
grees as  that  the  evil  will  wear  off  insensibly;  and  their 
places  be,  pari  passu,  filled  up  by  free  white  laborers.  If,  on 
the  contrary,  it  is  left  to  force  itself  on,  human  nature  must 
shudder  at  the  prospect  held  up." 

Mr.  Jefferson  did  not  mean  to  say,  nor  do  I,  that  the 
power  of  emancipation  is  in  the  Federal  Government.  He 
spoke  of  Virginia;  and,  as  to  the  power  of  emancipation,  I 
speak  of  the  slaveholding  States  only.  The  Federal  Gov- 
ernment, however,  as  we  insist,  has  the  power  of  restraining 
the  extension  of  the  institution  —  the  power  to  insure  that 
a  slave  insurrection  shall  never  occur  on  any  American  soil 
which  is  now  free  from  slavery. 

John  Brown's  effort  was  peculiar.  It  was  not  a  slave  in- 
surrection. It  was  an  attempt  by  white  men  to  get  up  a 
revolt  among  slaves,  in  which  the  slaves  refused  to  partici- 
pate. In  fact,  it  was  so  absurd  that  the  slaves,  with  all  their 
ignorance,  saw  plainly  enough  it  could  not  succeed.  That 
affair,  in  its  philosophy,  corresponds  with  the  many  at- 
tempts, related  in  history,  at  the  assassination  of  kings  and 
emperors.  An  enthusiast  broods  over  the  oppression  of  a 
people  till  he  fancies  himself  commissioned  by  Heaven  to 
liberate  them.  He  ventures  the  attempt,  which  ends  in 
little  else  than  his  own  execution.  Orsini*s  attempt  on 
Louis  Napoleon,  and  John  Brown's  attempt  at  Harper's 
Ferry,  were,  in  their  philosophy,  precisely  the  same.  The 
eagerness  to  cast  blame  on  old  England  in  the  one  case, 
and  on  New  England  in  the  other,  does  not  disprove  the 
sameness  of  the  two  things. 


116  THE  BRIEF 

And  how  much  would  it  avail  you,  if  you  could,  by  the 
use  of  John  Brown,  Helper's  book,^  and  the  like,  break 
up  the  Republican  organization?  Human  action  can  be 
modified  to  some  extent,  but  human  nature  cannot  be 
changed.  There  is  a  judgment  and  a  feeling  against  slavery 
in  this  nation,  which  cast  at  least  a  million  and  a  half  of 
votes.  You  cannot  destroy  that  judgment  and  feeling  — 
that  sentiment  —  by  breaking  up  the  political  organiza- 
tion which  rallies  around  it.  You  can  scarcely  scatter  and 
disperse  an  army  which  has  been  formed  into  order  in  the 
face  of  your  heaviest  fire;  but  if  you  could,  how  much 
would  you  gain  by  forcing  the  sentiment  which  created  it  out 
of  the  peaceful  channel  of  the  ballot-box  into  some  other 
channel?  What  would  that  other  channel  probably  be? 
Would  the  number  of  John  Browns  be  lessened  or  enlarged 
by  the  operation? 

But  you  will  break  up  the  Union  rather  than  submit  to 
a  denial  of  your  constitutional  rights. 

That  has  a  somewhat  reckless  sound;  but  it  would  be 
palliated,  if  not  fully  justified,  were  we  proposing,  by  the 
mere  force  of  numbers,  to  deprive  you  of  some  right  plainly 
written  down  in  the  Constitution.  But  we  are  proposing  no 
such  thing. 

When  you  make  these  declarations,  you  have  a  specific 
and  well-understood  allusion  to  an  assumed  constitutional 
right  of  yours  to  take  slaves  into  the  Federal  Territories, 
and  to  hold  them  there  as  property.  But  no  such  right  is 
specially  written  in  the  Constitution.  That  instrument  is 
literally  silent  about  any  such  right.  We,  on  the  contrary, 
deny  that  such  a  right  has  any  existence  in  the  Constitu- 
tion, even  by  implication. 

Your  purpose,  then,  plainly  stated,  is  that  you  will  de- 
stroy the  government,  unless  you  be  allowed  to  construe 

1  The  Impending  Crisis,  by  Hinton  R.  Helper,  published  in  1857,  was 
a  bitter  attack  upon  the  moral  and  economic  aspects  of  slavery. 


THE  COOPER  INSTITUTE  ADDRESS  117 

and  force  the  Constitution  as  you  please,  on  all  points  in 
dispute  between  you  and  us.  You  will  rule  or  ruin  in  all 
events. 

This,  plainly  stated,  is  your  language.  Perhaps  you  will 
say  the  Supreme  Court  has  decided  the  disputed  constitu- 
tional question  in  your  favor.  Not  quite  so.  But,  waiving 
the  lawyer's  distinction  between  dictum  and  decision,  the 
court  has  decided  the  question  for  you  in  a  sort  of  way. 
The  court  has  substantially  said,  it  is  your  constitutional 
right  to  take  slaves  into  the  Federal  Territories,  and  to 
hold  them  there  as  property.  When  I  say  the  decision  was 
made  in  a  sort,  of  way,  I  mean  it  was  made  in  a  divided 
court,  by  a  bare  majority  of  the  judges,  and  they  not  quite 
agreeing  with  one  another  in  the  reasons  for  making  it; 
that  it  is  so  made  as  that  its  avowed  supporters  disagree 
with  one  another  about  its  meaning,  and  that  it  was  mainly 
based  upon  a  mistaken  statement  of  fact  —  the  statement 
in  the  opinion  that  "the  right  of  property  in  a  slave  is  dis- 
tinctly and  expressly  affirmed  in  the  Constitution." 

An  inspection  of  the  Constitution  will  show  that  the 
right  of  property  in  a  slave  is  not  "distinctly  and  expressly 
affirmed"  in  it.  Bear  in  mind,  the  judges  do  not  pledge 
their  judicial  opinion  that  such  right  is  impliedly  affirmed 
in  the  Constitution;  but  they  pledge  their  veracity  that  it  is 
"distinctly  and  expressly"  affirmed  there  —  "distinctly," 
that  is,  not  mingled  with  anything  else  —  "expressly,"  that 
is,  in  words  meaning  just  that,  without  the  aid  of  any  infer- 
ence, and  susceptible  of  no  other  meaning. 

If  they  had  only  pledged  their  judicial  opinion  that  such 
right  is  affirmed  in  the  instrument  by  implication,  it  would 
be  open  to  others  to  show  that  neither  the  word  "slave" 
nor  "slavery"  is  to  be  found  in  the  Constitution,  nor  the 
word  "property"  even,  in  any  connection  with  language 
alluding  to  the  thing  slave  or  slavery;  and  that  wherever 
in  that  instrument  the  slave  is  alluded  to,  he  is  called  a 


118  THE  BRIEF 

"person";  and  wherever  his  master's  legal  right  in  relation 
to  him  is  alluded  to,  it  is  spoken  of  as  "service  or  labor 
which  may  be  due  "  —  as  a  debt  payable  in  service  or  labor. 
Also  it  would  be  open  to  show,  by  contemporaneous  history, 
that  this  mode  of  alluding  to  slaves  and  slavery,  instead  of 
speaking  of  them,  was  employed  on  purpose  to  exclude  from 
the  Constitution  the  idea  that  there  could  be  property  in 
man. 

To  show  all  this  is  easy  and  certain. 

When  this  obvious  mistake  of  the  judges  shall  be  brought 
to  their  notice,  is  it  not  reasonable  to  expect  that  they  will 
withdraw  the  mistaken  statement,  and  reconsider  the  con- 
clusion based  upon  it.^* 

And  then  it  is  to  be  remembered  that  "our  fathers  who 
framed  the  government  under  which  we  live"  —  the  men 
who  made  the  Constitution  —  decided  this  same  constitu- 
tional question  in  our  favor  long  ago;  decided  it  without 
division  among  themselves  when  making  the  decision;  with- 
out division  among  themselves  about  the  meaning  of  it 
after  it  was  made,  and,  so  far  as  any  evidence  is  left,  with- 
out basing  it  upon  any  mistaken  statement  of  facts. 

Under  all  these  circumstances,  do  you  really  feel  your- 
selves justified  to  break  up  this  government  unless  such  a 
court  decision  as  yours  is  shall  be  at  once  submitted  to  as  a 
conclusive  and  final  rule  of  political  action?  But  you  will 
not  abide  the  election  of  a  Republican  president!  In  that 
supposed  event,  you  say,  you  will  destroy  the  Union;  and 
then,  you  say,  the  great  crime  of  having  destroyed  it  will 
be  upon  us !  That  is  cool.  A  highwayman  holds  a  pistol  to 
my  ear,  and  mutters  through  his  teeth,  "Stand  and  deliver, 
or  I  shall  kill  you,  and  then  you  will  be  a  murderer!" 

To  be  sure,  what  the  robber  demanded  of  me  —  my 
money  —  was  my  own;  and  I  had  a  clear  right  to  keep  it; 
but  it  was  no  more  my  own  than  my  vote  is  my  own;  and 
th^  threat  of  death  to  me,  to  extort  my  money,  and  the 


THE  COOPER  INSTITUTE  ADDRESS  119 

threat  of  destruction  to  the  Union,  to  extort  my  vote,  can 
scarcely  be  distinguished  in  principle. 

A  few  words  now  to  Republicans.  It  is  exceedingly  de- 
sirable that  all  parts  of  this  great  Confederacy  shall  be  at 
peace,  and  in  harmony  one  with  another.  Let  us  Republi- 
cans do  our  part  to  have  it  so.  Even  though  much  pro- 
voked, let  us  do  nothing  through  passion  and  ill  temper. 
Even  though  the  Southern  people  will  not  so  much  as  lis- 
ten to  us,  let  us  calmly  consider  their  demands,  and  yield 
to  them  if,  in  our  deliberate  view  of  our  duty,  we  possibly 
can.  Judging  by  all  they  say  and  do,  and  by  the  subject 
and  nature  of  their  controversy  with  us,  let  us  determine, 
if  we  can,  what  will  satisfy  them. 

Will  they  be  satisfied  if  the  Territories  be  unconditionally 
surrendered  to  them.^^  We  know  they  will  not.  In  all  their 
present  complaints  against  us,  the  Territories  are  scarcely 
mentioned.  Invasions  and  insurrections  are  the  rage  now. 
Will  it  satisfy  them  if,  in  the  future,  we  have  nothing  to  do 
with  invasions  and  insurrections?  We  know  it  will  not. 
We  so  know,  because  we  know  we  never  had  anything  to 
do  with  invasions  and  insurrections;  and  yet  this  total 
abstaining  does  not  exempt  us  from  the  charge  and  the 
denunciation. 

The  question  recurs,  What  will  satisfy  them?  Simply 
this :  we  must  not  only  let  them  alone,  but  we  must  some- 
how convince  them  that  we  do  let  them  alone.  This,  we 
know  by  experience,  is  no  easy  task.  We  have  been  so 
trying  to  convince  them  from  the  very  beginning  of  our 
organization,  but  with  no  success.  In  all  our  platforms  and 
speeches  we  have  constantly  protested  our  purpose  to  let 
them  alone;  but  this  has  had  no  tendency  to  convince  them. 
Alike  unavailing  to  convince  them  is  the  fact  that  they 
have  never  detected  a  man  of  us  in  any  attempt  to  disturb 
them. 

These  natural  and  apparently  adequate  means  all  failing, 


120  THE  BRIEF 

what  will  convince  them?  This,  and  this  only:  cease  to  call 
slavery  wrong,  and  join  them  in  calling  it  right.  And  this 
must  be  done  thoroughly  —  done  in  acts  as  well  as  in 
words.  Silence  will  not  be  tolerated  —  we  must  place  our- 
selves avowedly  with  them.  Senator  Douglas's  new  sedi- 
tion law  must  be  enacted  and  enforced,  suppressing  all 
declarations  that  slavery  is  wrong,  whether  made  in  poli- 
tics, in  presses,  in  pulpits,  or  in  private.  We  must  arrest 
and  return  their  fugitive  slaves  with  greedy  pleasure.  We 
must  pull  down  our  free  State  constitutions.  The  whole 
atmosphere  must  be  disinfected  from  all  taint  of  opposition 
to  slavery,  before  they  will  cease  to  believe  that  all  their 
troubles  proceed  from  us. 

I  am  quite  aware  they  do  not  state  their  case  precisely  in 
this  way.  Most  of  them  would  probably  say  to  us,  "Let  us 
alone;  do  nothing  to  us,  and  say  what  you  please  about 
slavery."  But  we  do  let  them  alone  —  have  never  dis- 
turbed them  —  so  that,  after  all,  it  is  what  we  say  which 
dissatisfies  them.  They  will  continue  to  accuse  us  of  doing, 
until  we  cease  saying. 

I  am  also  aware  they  have  not  as  yet  in  terms  demanded 
the  overthrow  of  our  free-State  constitutions.  Yet  those 
constitutions  declare  the  wrong  of  slavery  with  more  sol- 
emn emphasis  than  do  all  other  sayings  against  it;  and 
when  all  these  other  sayings  shall  have  been  silenced,  the 
overthrow  of  these  constitutions  will  be  demanded,  and 
nothing  be  left  to  resist  the  demand.  It  is  nothing  to  the 
contrary  that  they  do  not  demand  the  whole  of  this  just 
now.  Demanding  what  they  do,  and  for  the  reason  they  do, 
they  can  voluntarily  stop  nowhere  short  of  this  consumma- 
tion. Holding,  as  they  do,  that  slavery  is  morally  right  and 
socially  elevating,  they  cannot  cease  to  demand  a  full 
national  recognition  of  it  as  a  legal  right  and  a  social  bless- 
ing. 

Nor  can  we  justifiably  withhold  this  on  any  ground  save 


THE  COOPER  INSTITUTE  ADDRESS  121 

our  conviction  that  slavery  is  wrong.  If  slavery  is  right,  all 
words,  acts,  laws,  and  constitutions  against  it  are  them- 
selves wrong,  and  should  be  silenced  and  swept  away.  If 
it  is  right,  we  cannot  justly  object  to  its  nationality  —  its 
universality;  if  it  is  wrong,  they  cannot  justly  insist  upon 
its  extension  —  its  enlargement.  All  they  ask  we  could 
readily  grant,  if  we  thought  slavery  right;  all  we  ask  they 
uould  as  readily  grant,  if  they  thought  it  wrong.  Their 
thinking  it  right  and  our  thinking  it  wrong  is  the  precise 
fact  upon  which  depends  the  whole  controversy.  Thinking 
it  right,  as  they  do,  they  are  not  to  blame  for  desiring  its 
full  recognition  as  being  right;  but  thinking  it  wrong,  as  we 
do,  can  we  yield  to  them?  Can  we  cast  our  votes  with  their 
view,  and  against  our  own?  In  view  of  our  moral,  social, 
and  political  responsibilities,  can  we  do  this? 

Wrong  as  we  think  slavery  is,  we  can  yet  afford  to  let  it 
alone  where  it  is,  because  that  much  is  due  to  the  necessity 
arising  from  its  actual  presence  in  the  nation;  but  can  we, 
while  our  votes  will  prevent  it,  allow  it  to  spread  into  the 
national  Territories,  and  to  overrun  us  here  in  these  free 
States?  If  our  sense  of  duty  forbids  this,  then  let  us  stand 
by  our  duty  fearlessly  and  effectively.  Let  us  be  diverted 
by  none  of  those  sophistical  contrivances  wherewith  we  are 
so  industriously  plied  and  belabored  —  contrivances  such 
as  groping  for  some  middle  ground  between  the  right  and 
the  wrong:  vain  as  the  search  for  a  man  who  should  be 
neither  a  living  man  nor  a  dead  man;  such  as  a  policy  of 
*' don't  care"  on  a  question  about  which  all  true  men  do 
care;  such  as  Union  appeals  beseeching  true  Union  men  to 
yield  to  Disunionists,  reversing  the  divine  rule,  and  call- 
ing, not  the  sinners,  but  the  righteous  to  repentance;  such 
as  invocations  to  Washington,  imploring  men  to  unsay 
what  Washington  said  and  undo  what  Washington  did. 

Neither  let  us  be  slandered  from  our  duty  by  false  ac- 
cusations against  us,  nor  frightened  from  it  by  menaces  of 


122  THE  BRIEF 

destruction  to  the  government,  nor  of  dungeons  to  our- 
selves. Let  us  have  faith  that  right  makes  might,  and 
in  that  faith  let  us  to  the  end  dare  to  do  our  duty  as  we 
understand  it. 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     123 


3.  THE  SPEECH  OF  THE  HONORABLE  ELIHU  ROOT 
OF  NEW  YORK 

In  the  Senate  of  the  United  States,  on  the  Panama  Canal  Tolls, 
January  21, 1913^ 

On  August  24,  1912,  the  House  of  Representatives  approved 
an  act  "for  the  opening,  maintenance,  protection,  and  operation 
of  the  Panama  Canal,  and  the  sanitation  and  government  of  the 
Canal  Zone."  Section  5  of  this  bill  provided:  "That  the  Presi- 
dent is  hereby  authorized  to  prescribe  and  from  time  to  time 
change  the  tolls  that  shall  be  levied  by  the  Government  of  the 
United  States  for  the  use  of  the  Panama  Canal:  Provided,  That 
no  tolls,  when  prescribed  as  above,  shall  be  changed,  unless  six 
months'  notice  thereof  shall  have  been  given  by  the  President  by 
proclamation.  No  tolls  shall  he  levied  upon  vessels  engaged  in  the 
coastwise  trade  of  the  United  States.  .  .  .  When  based  upon  net 
registered  tonnage  for  ships  of  commerce  the  tolls  shall  not  ex- 
ceed one  dollar  and  twenty-five  cents  per  net  registered  ton,  nor 
be  less,  other  than  for  vessels  of  the  United  States  and  its  citizens, 
than  the  estimated  proportionate  cost  of  the  actual  maintenance 
and  operation  of  the  Canal,  subject,  however,  to  the  provisions  of 
article  19  of  the  convention  between  the  United  States  and  the 
Republic  of  Panama." 

On  January  14,  1913,  Mr.  Root,  of  New  York,  introduced  in 
the  Senate  an  amendment  striking  out  from  section  5  the  words 
italicized  above:  "No  tolls  shall  be  levied  upon  vessels  engaged 
in  the  coastwise  trade  of  the  United  States,"  and  also,  "other 
than  for  vessels  of  the  United  States  and  its  citizens."  Mr. 
Root's  amendment  was  read  twice  and  referred  to  the  Com- 
mittee on  Interoceanic  Canals,  where  it  died. 

There  was,  however,  a  very  considerable  and  non-partisan 
sentiment  throughout  the  country,  supported  by  an  influential 
portion  of  the  press  and  by  small  groups  in  both  houses  of  Con- 
gress, to  the  eflFect  that  the  principle  underlying  Mr.  Root's 
amendment  was  right  in  principle,  in  that  by  section  5  the  Pan- 
ama Canal  Act  violated  the  Hay-Pauncefote  Treaty  with  Great 
Britain.   Furthermore,  President  Wilson  shared  strongly  in  this 

'  From  the  Congressional  Record,  by  the  kind  permission  of  Mr.  Root. 


124  THE  BRIEF 

opinion,  and  in  February,  1914,  read  a  message  in  Congress  ask- 
ing for  a  reversal  of  the  objectionable  legislation. 

In  March  the  House  Committee  reported  favorably  a  bill  re- 
pealing the  exemption  clause  of  the  Panama  Canal  Act.  Debate 
on  the  measure  continued  from  March  6  to  March  31,  when  the 
bill  passed  the  House  by  a  vote  of  247  to  162.  When  the  measure 
was  brought  before  the  Senate  a  long  struggle  ensued,  but  finally 
on  June  11,  it  was  passed  in  the  following  amended  form: 

Provided,  That  the  passage  of  this  act  shall  not  be  construed 
or  held  as  a  waiver  or  relinquishment  of  any  right  the  United 
States  may  have  under  the  treaty  with  Great  Britain,  ratified 
February  21,  1902,  or  the  treaty  with  the  Republic  of  Panama, 
ratified  February  26,  1904,  or  otherwise,  to  discriminate  in  favor 
of  its  vessels  by  exempting  the  vessels  of  the  United  States  or  its 
citizens  from  the  payment  of  tolls  for  passage  through  said  Canal, 
or  as  in  any  way  waiving,  impairing,  or  affecting  any  right  of  the 
United  States  under  said  treaties,  or  otherwise,  with  respect  to 
the  sovereignty  over  or  the  ownership,  control,  and  management 
of  said  Canal,  and  the  regulation  of  the  conditions  or  charges  of 
traffic  through  the  same. 

On  the  following  day,  June  12,  the  House  concurred  in  the 
Senate  amendment,  and  on  June  15  it  received  the  President's 
signature. 

Mr.  President,  in  the  late  days  of  last  summer,  after 
nearly  nine  months  of  continuous  session,  Congress  enacted, 
in  the  bill  to  provide  for  the  administration  of  the  Panama 
Canal,  a  provision  making  a  discrimination  between  the 
tolls  to  be  charged  upon  foreign  vessels  and  the  tolls  to  be 
charged  upon  American  vessels  engaged  in  coastwise  trade. 
We  all  must  realize,  as  we  look  back,  that  when  that  pro- 
vision was  adopted  the  members  of  both  houses  were  much 
exhausted;  our  minds  were  not  working  with  their  full  vigor; 
we  were  weary  physically  and  mentally.  Such  discussion  as 
there  was,  was  to  empty  seats.  In  neither  House  of  Con- 
gress, during  the  period  that  this  provision  was  under  dis- 
cussion, could  there  be  found  more  than  a  scant  dozen  or 
two  of  members.  The  provision  has  been  the  cause  of  great 
regret  to  a  multitude  of  our  fellow  citizens,  whose  good 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS    125 

opinion  we  all  desire  and  whose  leadership  of  opinion  in  the 
country  makes  their  approval  of  the  course  of  our  Congress 
an  important  element  in  maintaining  that  confidence  in 
government  which  is  so  essential  to  its  success.  The  pro- 
vision has  caused  a  painful  impression  throughout  the 
world  that  the  United  States  has  departed  from  its  often- 
announced  rule  of  equality  of  opportunity  in  the  use  of  the 
Panama  Canal,  and  is  seeking  a  special  advantage  for  itself 
in  what  is  believed  to  be  a  violation  of  the  obligations  of  a 
treaty.  Mr.  President,  that  opinion  of  the  civilized  world 
is  something  which  we  may  not  lightly  disregard.  "A  de- 
cent respect  to  the  opinions  of  mankind"  was  one  of  the 
motives  stated  for  the  people  of  these  colonies  in  the  great 
Declaration  of  American  Independence. 

The  effect  of  the  provision  has  thus  been  doubly  unfor- 
tunate, and  I  ask  the  Senate  to  listen  to  me  while  I  endeavor 
to  state  the  situation  in  which  we  find  ourselves;  to  state 
the  case  which  is  made  against  the  action  that  we  have 
taken,  in  order  that  I  may  present  to  the  Senate  the 
question  whether  we  should  not  either  submit  to  an  im- 
partial tribunal  the  question  whether  we  are  right,  so 
that,  if  we  are  right,  we  may  be  vindicated  in  the  eyes 
of  all  the  world;  or  whether  we  should  not,  by  a  repeal 
of  the  provision,  retire  from  the  position  which  we  have 
taken. 

In  the  year  1850,  Mr.  President,  there  were  two  great 
powers  in  possession  of  the  North  American  Continent  to 
the  north  of  the  Rio  Grande.  The  United  States  had  but 
just  come  to  its  full  stature.  By  the  Webster-Ashburton 
Treaty  of  1842  our  northeastern  boundary  had  been 
settled,  leaving  to  Great  Britain  that  tremendous  stretch 
of  seacoast  including  Nova  Scotia,  New  Brunswick,  New- 
foundland, Labrador,  and  the  shores  of  the  Gulf  of  St. 
Lawrence,  now  forming  the  Province  of  Quebec.  In  1846 
the  Oregon  boundary  had  been  settled,  assuring  to  the 


126  THE  BRIEF 

United  States  a  title  to  that  vast  region  which  now  consti- 
tutes the  States  of  Washington,  Oregon,  and  Idaho.  In 
1848  the  Treaty  of  Guadalupe-Hidalgo  had  given  to  us  that 
great  empire  wrested  from  Mexico  as  a  result  of  the  Mexi- 
can War,  which  now  spreads  along  the  coast  of  the  Pacific 
as  the  State  of  California  and  the  great  region  between 
California  and  Texas. 

Inspired  by  the  manifest  requirements  of  this  new  em- 
pire, the  United  States  turned  its  attention  to  the  possibil- 
ity of  realizing  the  dream  of  centuries  and  connecting  its 
two  coasts  —  its  old  coast  upon  the  Atlantic  and  its  new 
coast  upon  the  Pacific  —  by  a  ship  canal  through  the 
Isthmus;  but  when  it  turned  its  attention  in  that  direction, 
it  found  the  other  empire  holding  the  place  of  advantage. 
Great  Britain  had  also  her  coast  upon  the  Atlantic  and  her 
coast  upon  the  Pacific,  to  be  joined  by  a  canal.  Further 
than  that.  Great  Britain  was  a  Caribbean  power.  She  had 
Bermuda  and  the  Bahamas;  she  had  Jamaica  and  Trinidad; 
she  had  the  Windward  Islands  and  the  Leeward  Islands; 
she  had  British  Guiana  and  British  Honduras;  she  had, 
moreover,  a  protectorate  over  the  Mosquito  Coast,  a  great 
stretch  of  territory  upon  the  eastern  shore  of  Central 
America  which  included  the  river  San  Juan  and  the  valley 
and  harbor  of  San  Juan  de  Nicaragua,  or  Grey  town.  All 
men's  minds  then  were  concentrated  upon  the  Nicaragua 
Canal  route,  as  they  were  until  after  the  Treaty  of  1901  was 
made. 

And  thus,  when  the  United  States  turned  its  attention 
toward  joining  these  two  coasts  by  a  canal  through  the 
Isthmus,  it  found  Great  Britain  in  possession  of  the  eastern 
end  of  the  route  which  men  generally  believed  would  be  the 
most  available  route  for  the  canal.  Accordingly,  the  United 
States  sought  a  treaty  with  Great  Britain  by  which  Great 
Britain  should  renounce  the  advantage  which  she  had  and 
admit  the  United  States  to  equal  participation  with  her  in 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     127 

the  control  and  the  protection  of  a  canal  across  the  Isthmus. 
From  that  came  the  Clayton-Bulwer  Treaty. 

Let  me  repeat  that  this  treaty  was  sought,  not  by 
England,  but  by  the  United  States.  Mr.  Clayton,  who 
was  Secretary  of  State  at  the  time,  sent  our  Minister  to 
France,  Mr.  Rives,  to  London  for  the  purpose  of  urging 
upon  Lord  Palmerston  the  making  of  the  treaty.  The 
treaty  was  made  by  Great  Britain  as  a  concession  to  the 
urgent  demands  of  the  United  States. 

I  should  have  said,  in  speaking  about  the  urgency  with 
which  the  United  States  sought  the  Clayton-Bulwer  Treaty, 
that  there  were  two  treaties  made  with  Nicaragua,  one  by 
Mr.  Heis  and  one  by  Mr.  Squire,  both  representatives  of 
the  United  States.  Each  gave,  so  far  as  Nicaragua  could, 
great  powers  to  the  United  States  in  regard  to  the  con- 
struction of  a  canal,  but  they  were  made  without  authoriza- 
tion from  the  United  States,  and  they  were  not  approved 
by  the  Government  of  the  United  States  and  were  never 
sent  to  the  Senate.  Mr.  Clayton,  however,  held  those 
treaties  in  abeyance  as  a  means  of  inducing  Great  Britain 
to  enter  into  the  Clayton-Bulwer  Treaty.  He  held  them 
practically  as  a  whip  over  the  British  negotiators,  and, 
having  accomplished  the  purpose,  they  were  thrown  into 
the  waste-basket. 

By  that  treaty  Great  Britain  agreed  with  the  United 
States  that  neither  Government  would  "ever  obtain  or 
maintain  for  itself  any  exclusive  control  over  the  ship 
canal";  that  neither  would  "make  use  of  any  protection" 
which  either  afforded  to  a  canal  "or  any  alliance  which 
either"  might  have  "with  any  State  or  people  for  the  pur- 
pose of  erecting  or  maintaining  any  fortifications,  or  of 
occupying,  fortifying,  or  colonizing  Nicaragua,  Costa  Rica, 
the  Mosquito  Coast,  or  any  part  of  Central  America,  or  of 
assuming  or  exercising  dominion  over  the  same  ";  and  that 
neither  would  "  take  advantage  of  any  intimacy,  or  use  any 


128  THE  BRIEF 

alliance,  connection,  or  influence  that  either"  might  "pos- 
sess with  any  State  or  Government  through  whose  territory 
the  said  canal  may  pass,  for  the  purpose  of  acquiring  or 
holding,  directly  or  indirectly,  for  the  citizens  or  subjects 
of  the  one,  any  rights  or  advantages  in  regard  to  commerce 
or  navigation  through  the  said  canal  which  shall  not  be 
offered  on  the  same  terms  to  the  citizens  or  subjects  of  the 
other." 

You  will  observe,  Mr.  President,  that  under  these  provi- 
sions the  United  States  gave  up  nothing  that  it  then  had. 
Its  obligations  were  entirely  looking  to  the  future;  and 
Great  Britain  gave  up  its  rights  under  the  protectorate 
over  the  Mosquito  Coast,  gave  up  its  rights  to  what  was 
supposed  to  be  the  eastern  terminus  of  the  canal.  And,  let 
me  say  without  recurring  to  it  again,  under  this  treaty, 
after  much  discussion  which  ensued  as  to  the  m.eaning  of 
its  terms,  Great  Britain  did  surrender  her  rights  to  the 
Mosquito  Coast,  so  that  the  position  of  the  United  States 
and  Great  Britain  became  a  position  of  absolute  equality. 
Under  this  treaty  also  both  parties  agreed  that  each  would 
"enter  into  treaty  stipulations  with  such  of  the  Central 
American  States  as  they"  might  "deem  advisable  for  the 
purpose"  —  I  now  quote  the  words  of  the  treaty  —  "for 
the  purpose  of  more  effectually  carrying  out  the  great  de- 
sign of  this  convention,  namely,  that  of  constructing  and 
maintaining  the  said  canal  as  a  ship  communication  be- 
tween the  two  oceans  for  the  benefit  of  mankind,  on  equal 
terms  to  all,  and  of  protecting  the  same." 

That  declaration,  Mr.  President,  is  the  corner-stone  of 
the  rights  of  the  United  States  upon  the  Isthmus  of  Panama, 
rights  having  their  origin  in  a  solemn  declaration  that  there 
should  be  constructed  and  maintained  a  ship  canal  "be- 
tween the  two  oceans  for  the  benefit  of  mankind,  on  equal 
terms  to  all." 

In  the  eighth  article  of  that  treaty  the  parties  agreed: 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS    129 

The  Governments  of  the  United  States  and  Great  Britain  hav- 
ing not  only  desired,  in  entering  into  this  convention,  to  accom- 
plish a  particular  object,  but  also  to  establish  a  general  principle, 
they  hereby  agree  to  extend  their  protection,  by  treaty  stipula- 
tions, to  any  other  practicable  communications,  whether  by  canal 
or  railway,  across  the  isthmus  which  connects  North  and  South 
America,  and  especially  to  the  interoceanic  communications, 
should  the  same  prove  to  be  practicable,  whether  by  canal  or  rail- 
way, which  are  now  proposed  to  be  established  by  the  way  of 
Tehuantepec  or  Panama.  In  granting,  however,  their  joint  pro- 
tection to  any  such  canals  or  railways  as  are  by  this  article  speci- 
fied, it  is  always  understood  by  the  United  States  and  Great 
Britain  that  the  parties  constructing  or  owning  the  same  shall 
impose  no  other  charges  or  conditions  of  traffic  thereupon  than 
the  aforesaid  Governments  shall  approve  of  as  just  and  equitable; 
and  that  the  same  canals  or  railways,  being  open  to  the  citizens 
and  subjects  of  the  United  States  and  Great  Britain  on  equal 
terms,  shall  also  be  open  on  like  terms  to  the  citizens  and  sub- 
jects of  every  other  State  which  is  willing  to  grant  thereto  such 
protection  as  the  United  States  and  Great  Britain  engage  to 
afford. 

There,  Mr.  President,  is  the  explicit  agreement  for 
equality  of  treatment  to  the  citizens  of  the  United  States 
and  to  the  citizens  of  Great  Britain  in  any  canal,  wherever 
it  may  be  constructed,  across  the  Isthmus.  That  was  the 
fundamental  principle  embodied  in  the  Treaty  of  1850. 
And  we  are  not  without  an  authoritative  construction  as 
to  the  scope  and  requirements  of  an  agreement  of  that 
description,  because  we  have  another  treaty  with  Great 
Britain  —  a  treaty  which  formed  one  of  the  great  land- 
marks in  the  diplomatic  history  of  the  world,  and  one  of 
the  great  steps  in  the  progress  of  civilization  —  the  Treaty 
of  Washington  of  1871,  under  which  the  Alabama  claims 
were  submitted  to  arbitration.  Under  that  treaty  there 
were  provisions  for  the  use  of  the  American  canals  along 
the  waterway  of  the  Great  Lakes,  and  the  Canadian  canals 
along  the  same  line  of  communication,  upon  equal  terms  to 
the  citizens  of  the  two  countries. 


130  THE  BRIEF 

Some  years  after  the  treaty,  Canada  undertook  to  do 
something  quite  similar  to  what  we  have  undertaken  to  do 
in  this  law  about  the  Panama  Canal.  It  provided  that  while 
nominally  a  toll  of  twenty  cents  a  ton  should  be  charged 
upon  the  merchandise  both  of  Canada  and  of  the  United 
States  there  should  be  a  rebate  of  eighteen  cents  for  all 
merchandise  which  went  to  Montreal  or  beyond,  leaving  a 
toll  of  but  two  cents  a  ton  for  that  merchandise.  The 
United  States  objected;  and  I  beg  your  indulgence  while  I 
read  from  the  message  of  President  Cleveland  upon  that 
subject,  sent  to  the  Congress  August  23,  1888.  He  says: 

By  article  27  of  the  Treaty  of  1871  provision  was  made  to  se- 
cure to  the  citizens  of  the  United  States  the  use  of  the  Welland,  St. 
Lawrence,  and  other  canals  in  the  Dominion  of  Canada  on  terms 
of  equality  with  the  inhabitants  of  the  Dominion,  and  to  also 
secure  to  the  subjects  of  Great  Britain  the  use  of  the  St.  Clair 
Flats  Canal  on  terms  of  equality  with  the  inhabitants  of  the 
United  States. 

The  equality  with  the  inhabitants  of  the  Dominion  which  we 
were  promised  in  the  use  of  the  canals  of  Canada  did  not  secure  to 
us  freedom  from  tolls  in  their  navigation,  but  we  had  a  right  to 
expect  that  we,  being  Americans  and  interested  in  American  com- 
merce, would  be  no  more  burdened  in  regard  to  the  same  than 
Canadians  engaged  in  their  own  trade;  and  the  whole  spirit  of 
the  concession  made  was,  or  should  have  been,  that  merchandise 
and  property  transported  to  an  American  market  through  these 
canals  should  not  be  enhanced  in  its  cost  by  tolls  many  times 
higher  than  such  as  were  carried  to  an  adjoining  Canadian  market. 
All  our  citizens,  producers  and  consumers,  as  well  as  vessel  owners, 
were  to  enjoy  the  equality  promised. 

And  yet  evidence  has  for  some  time  been  before  the  Congress, 
furnished  by  the  Secretary  of  the  Treasury,  showing  that,  while 
the  tolls  charged  in  the  first  instance  are  the  same  to  all,  such 
vessels  and  cargoes  as  are  destined  to  certain  Canadian  ports  — 

their  coastwise  trade  — 

are  allowed  a  refund  of  nearly  the  entire  tolls,  while  those  bound 
for  American  ports  are  not  allowed  any  such  advantage. 

To  promise  equality  and  then  in  practice  make  it  conditional 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     131 

upon  our  vessels  doing  Canadian  business  instead  of  their  own,  is 
to  fulfill  a  promise  with  the  shadow  of  performance. 

Upon  the  representations  of  the  United  States  embody- 
ing that  viewi  Canada  retired  from  the  position  which  she 
had  taken,  rescinded  the  provision  for  differential  tolls,  and 
put  American  trade  going  to  American  markets  on  the  same 
basis  of  tolls  as  Canadian  trade  going  to  Canadian  markets. 
She  did  not  base  her  action  upon  any  idea  that  there  was 
no  competition  between  trade  to  American  ports  and  trade 
to  Canadian  ports,  but  she  recognized  the  law  of  equality 
in  good  faith  and  honor;  and  to  this  day  that  law  is  being 
accorded  to  us,  and  by  each  great  Nation  to  the  other. 

I  have  said,  Mr.  President,  that  the  Clayton-Bulwer 
Treaty  was  sought  by  us.  In  seeking  it  we  declared  to 
Great  Britain  what  it  was  that  we  sought.  I  ask  the  Senate 
to  listen  to  the  declaration  that  we  made  to  induce  Great 
Britain  to  enter  into  that  treaty  —  to  listen  to  it  because 
it  is  the  declaration  by  which  we  are  in  honor  bound  as 
truly  as  if  it  were  signed  and  sealed. 

Here  I  will  read  from  the  report  made  to  the  Senate  on 
the  5th  day  of  April,  1900,  by  Senator  Cushman  K.  Davis, 
then  chairman  of  the  Committee  on  Foreign  Relations.  So 
you  will  perceive  that  this  is  no  new  matter  to  the  Senate  of 
the  United  States,  and  that  I  am  not  proceeding  upon  my 
own  authority  in  thinking  it  worthy  of  your  attention. 

Mr.  Rives  was  instructed  to  say  and  did  say  to  Lord 
Palmerston,  in  urging  upon  him  the  making  of  the  Clayton- 
Bulwer  Treaty,  this : 

The  United  States  sought  no  exclusive  privilege  or  preferential 
right  of  any  kind  in  regard  to  the  proposed  communication,  and 
their  sincere  wish,  if  it  should  be  found  practicable,  was  to  see  it 
dedicated  to  the  common  use  of  all  nations  on  the  most  liberal 
terms  and  a  footing  of  perfect  equality  for  all. 

That  the  United  States  would  not,  if  they  could,  obtain  any 
exclusive  right  or  privilege  in  a  great  highway  which  naturally 
belonged  to  all  mankind. 


132  THE   BRIEF 

That,  sir,  was  the  spirit  of  the  Clayton-Bulwer  Con- 
vention. That  was  what  the  United  States  asked  Great 
Britain  to  agree  upon.  That  self-denying  declaration  under- 
lay and  permeated  and  found  expression  in  the  terms  of  the 
Clayton-Bulwer  Convention.  And  upon  that  representa- 
tion Great  Britain  in  that  convention  relinquished  her 
coign  of  vantage  which  she  herself  had  for  the  benefit  of  her 
great  North  American  empire  for  the  control  of  the  canal 
across  the  Isthmus. 

Mr.  Cummins.  The  Senator  has  stated  that  at  the  time 
of  the  Clayton-Bulwer  Treaty  we  were  excluded  from  the 
Mosquito  Coast  by  the  protectorate  exercised  by  Great 
Britain  over  that  coast.  My  question  is  this :  Had  we  not  at 
that  time  a  treaty  with  New  Granada  that  gave  us  equal 
or  greater  rights  upon  the  Isthmus  of  Panama  than  were 
claimed  even  by  Great  Britain  over  the  Mosquito  Coast.^^ 

Mr.  Root.  Mr.  President,  we  had  the  Treaty  of  1846 
with  New  Granada,  under  which  we  undertook  to  protect 
any  railway  or  canal  across  the  Isthmus.  But  that  did  not 
apply  to  the  Nicaragua  route,  which  was  then  supposed 
to  be  the  most  available  route  for  a  canal. 

Mr.  Cummins.  I  quite  agree  with  the  Senator  about 
that.  I  only  wanted  it  to  appear  in  the  course  of  the  argu- 
ment that  we  were  then  under  no  disability  so  far  as  con- 
cerned building  a  canal  across  the  Isthmus  of  Panama. 

Mr.  Root.  We  were  under  a  disability  so  far  as  con- 
cerned building  a  canal  by  the  Nicaragua  route,  which  was 
regarded  as  the  available  route  until  the  discussion  in  the 
Senate  after  1901,  in  which  Senator  Spooner  and  Senator 
Hanna  practically  changed  the  judgment  of  the  Senate  with 
regard  to  what  was  the  proper  route  to  take.  And  in  the 
Treaty  of  1850,  so  anxious  were  we  to  secure  freedom  from 
the  claims  of  Great  Britain  on  the  eastern  end  of  the  Nica- 
ragua route  that,  as  I  have  read,  we  agreed  that  the  same 
contract  should  apply,  not  merely  to  the  Nicaragua  route, 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     133 

but  to  the  whole  of  the  Isthmus.  So  that,  from  that  time  on, 
the  whole  Isthmus  was  impressed  by  the  same  obligations 
which  were  impressed  upon  the  Nicaragua  route,  and  what- 
ever rights  we  had  under  our  Treaty  of  1846  with  New 
Granada  we  were  thenceforth  bound  to  exercise  with  due 
regard  and  subordination  to  the  provisions  of  the  Clayton- 
Bulwer  Treaty. 

Mr.  President,  after  the  lapse  of  some  thirty  years,  dur- 
ing the  early  part  of  which  we  were  strenuously  insisting 
upon  the  observance  by  Great  Britain  of  her  obligations 
under  the  Clayton-Bulwer  Treaty  and  during  the  latter 
part  of  which  we  were  beginning  to  be  restive  under  our 
obligations  by  reason  of  that  treaty,  we  undertook  to  secure 
a  modification  of  it  from  Great  Britain.  In  the  course  of 
that  undertaking  there  was  much  discussion  and  some 
difference  of  opinion  as  to  the  continued  obligations  of  the 
treaty.  But  I  think  that  was  finally  put  at  rest  by  the 
decision  of  Secretary  Olney  in  the  memorandum  upon  the 
subject  made  by  him  in  the  year  1896.  In  that  memo- 
randum he  said: 

Under  these  circumstances,  upon  every  principle  which  gov- 
erns the  relation  to  each  other,  either  of  nations  or  of  individuals, 
the  United  States  is  completely  estopped  from  denying  that  the 
treaty  is  in  full  force  and  vigor. 

If  changed  conditions  now  make  stipulations,  which  were  once 
deemed  advantageous,  either  inapplicable  or  injurious,  the  true 
remedy  is  not  in  ingenious  attempts  to  deny  the  existence  of  the 
treaty  or  to  explain  away  its  provisions,  but  in  a  direct  and 
straightforward  application  to  Great  Britain  for  a  reconsideration 
of  the  whole  matter. 

We  did  apply  to  Great  Britain  for  a  reconsideration  of 
the  whole  matter,  and  the  result  of  the  application  was  the 
Hay-Pauncefote  Treaty.  That  treaty  came  before  the 
Senate  in  two  forms:  First,  in  the  form  of  an  instrument 
signed  on  the  5th  of  February,  1900,  which  was  amended  by 
the  Senate;  and,  second,  in  the  form  of  an  instrument 


134  THE  BRIEF 

signed  on  the  18th  of  November,  1901,  which  continued  the 
greater  part  of  the  provisions  of  the  earher  instrument,  but 
somewhat  modified  or  varied  the  amendments  which  had 
been  made  by  the  Senate  to  that  earlier  instrument. 

It  is  really  but  one  process  by  which  the  paper  sent  to 
the  Senate  in  February,  1900,  passed  through  a  course  of 
amendment;  first,  at  the  hands  of  the  Senate,  and  then  at 
the  hands  of  the  negotiators  between  Great  Britain  and  the 
United  States,  with  the  subsequent  approval  of  the  Senate. 
In  both  the  first  form  and  the  last  of  this  treaty  the  pre- 
amble provides  for  preserving  the  provisions  of  article  8  of 
the  Clayton-Bulwer  Treaty.  Both  forms  provide  for  the 
construction  of  the  canal  under  the  auspices  of  the  United 
States  alone,  instead  of  its  construction  under  the  auspices 
of  both  countries. 

Both  forms  of  that  treaty  provide  that  the  canal  might 
be 

constructed  under  the  auspices  of  the  Government  of  the  United 
States,  either  directly  at  its  own  cost  or  by  gift  or  loan  of  money 
'  to  individuals  or  corporations  or  through  subscription  to  or  pur- 

chase of  stock  or  shares  — 

that  being  substituted  for  the  provisions  of  the  Clayton- 
Bulwer  Treaty  under  which  both  countries  were  to  be 
patrons  of  the  enterprise. 

Under  both  forms  it  was  further  provided  that  — 

Subject  to  the  provisions  of  the  present  convention,  the  said 
Government  — 

The  United  States  — 

shall  have  and  enjoy  all  the  rights  incident  to  such  construction, 
as  well  as  the  exclusive  right  of  providing  for  the  regulation  and 
management  of  the  canal. 

That  provision,  however,  for  the  exclusive  patronage  of 
the  United  States  was  subject  to  the  initial  provision  that 
the  modification  or  change  from  the  Clayton-Bulwer  Treaty 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     135 

was  to  be  for  the  construction  of  such  canal  under  the  aus- 
pices of  the  Government  of  the  United  States,  without  im- 
pairing the  general  principle  of  neutralization  established 
in  article  8  of  that  convention. 

'  Then  the  treaty,  as  it  was  finally  agreed  to,  provides  that 
the  United  States  "adopt,  as  the  basis  of  such  neutraliza- 
tion of  such  ship  canal,"  the  following  rules,  substantially 
as  embodied  in  the  convention  "of  Constantinople,  signed 
the  29th  of  October,  1888,"  for  the  free  navigation  of  the 
Suez  Maritime  Canal;  that  is  to  say: 

First.  The  canal  shall  be  free  and  open  ...  to  the  vessels 
of  commerce  and  of  war  of  all  nations  "observing  these 
rules  on  terms  of  entire  equality,  so  that  there  shall  be  no 
discrimination  against  any  nation  or  its  citizens  or  subjects 
in  respect  to  the  conditions  or  charges  of  traffic,  or  other- 
wise." Such  conditions  and  charges  of  traffic  shall  be  just 
and  equitable. 

Then  follow  rules  relating  to  blockade  and  vessels  of  war, 
the  embarkation  and  disembarkation  of  troops,  and  the  ex- 
tension of  the  provisions  to  the  waters  adjacent  to  the  canal. 

Now,  Mr.  President,  that  rule  must,  of  course,  be  read  in 
connection  with  the  provision  for  the  preservation  of  the 
principle  of  neutralization  established  in  article  8  of  the 
Clayton-Bulwer  Convention. 

Let  me  take  your  minds  back  again  to  article  8  of  the 
Clayton-Bulwer  Convention,  consistently  with  which  we 
are  bound  to  construe  the  rule  established  by  the  Hay- 
Pauncefote  Convention.  The  principle  of  neutralization 
provided  for  by  the  eighth  article  is  neutralization  upon 
terms  of  absolute  equality  both  between  the  United  States 
and  Great  Britain  and  between  the  United  States  and  all 
other  powers. 

It  is  always  understood  — 

'    Says  the  eighth  article  — 


136  THE  BRIEF 

by  the  United  States  and  Great  Britain  that  the  parties  construct- 
ing or  owning  the  same  — 

That  is,  the  canal  — 

shall  im])ose  no  other  charges  or  conditions  of  traffic  thereupon 
than  the  aforesaid  Governments  shall  approve  of  as  just  and 
equitable,  and  that  the  same  canals  or  railways,  being  open  to  the 
citizens  and  subjects  of  the  United  States  and  Great  Britain  on 
equal  terms,  shall  also  be  open  on  like  terms  to  the  citizens  and 
subjects  of  every  other  State  which  is  willing  to  grant  thereto 
such  protection  as  the  United  States  and  Great  Britain  engage  to 
afford. 

Now,  we  are  not  at  liberty  to  put  any  construction  upon 
the  Hay-Pauncef  ote  Treaty  which  violates  that  controlling 
declaration  of  absolute  equality  between  the  citizens  and 
subjects  of  Great  Britain  and  the  United  States. 

Mr.  President,  when  the  Hay-Pauncefote  Convention 
was  ratified  by  the  Senate  it  was  in  full  view  of  this  con- 
trolling principle,  in  accordance  with  which  their  act  must 
be  construed,  for  Senator  Davis,  in  his  report  from  the 
Committee  on  Foreign  Relations,  to  which  I  have  already 
referred,  said,  after  referring  to  the  Suez  Convention  of 
1888: 

The  United  States  cannot  take  an  attitude  of  opposition  to  the 
principles  of  the  great  act  of  October  22,  1888,  without  discredit- 
ing the  official  declarations  of  our  Government  for  fifty  j^ears  on 
the  neutrality  of  an  Isthmian  canal  and  its  equal  use  by  all  nations 
without  discrimination. 

To  set  up  the  selfish  motive  of  gain  by  establishing  a  monopoly 
of  a  highway  that  must  derive  its  income  from  the  patronage  of  all 
maritime  countries  would  be  unworthy  of  the  United  States,  if  we 
owned  the  country  through  which  the  canal  is  to  be  built. 

But  the  location  of  the  canal  belongs  to  other  Governments, 
from  whom  we  must  obtain  any  right  to  construct  a  canal  on  their 
territory,  and  it  is  not  unreasonable,  if  the  question  was  new  and 
was  not  involved  in  a  subsisting  treaty  with  Great  Britain,  that  she 
should  question  the  right  of  even  Nicaragua  and  Costa  Rica  to 
grant  to  our  ships  of  commerce  and  of  war  extraordinary  privi- 
leges of  transit  through  the  canal. 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     137 

I  shall  revert  to  that  principle  declared  by  Senator 
Davis.  I  continue  the  quotation: 

It  is  not  reasonable  to  suppose  that  Nicaragua  and  Costa  Rica 
would  grant  to  the  United  States  the  exclusive  control  of  a  canal 
through  those  States  on  terms  less  generous  to  the  other  maritime 
nations  than  those  prescribed  in  the  great  act  of  October  22, 1888, 
or,  if  we  could  compel  them  to  give  us  such  advantages  over  other 
nations,  it  would  not  be  creditable  to  our  country  to  accept  them. 

That  our  Government  or  our  people  will  furnish  the  money  to 
build  the  canal  presents  the  single  question  whether  it  is  profitable 
to  do  so.  If  the  canal,  as  property,  is  worth  more  than  its  cost,  we 
are  not  called  on  to  divide  the  profits  with  other  nations.  If  it  is 
worth  less  and  we  are  compelled  by  national  necessities  to  build 
the  canal,  we  have  no  right  to  call  on  other  nations  to  make  up  the 
loss  to  us.  In  any  view,  it  is  a  venture  that  we  will  enter  upon  if 
it  is  to  our  interest,  and  if  it  is  otherwise  we  will  withdraw  from 
its  further  consideration. 

The  Suez  Canal  makes  no  discrimination  in  its  tolls  in  favor  of 
its  stockholders,  and,  taking  its  profits  or  the  half  of  them  as  our 
basis  of  calculation,  we  will  never  find  it  necessary  to  differentiate 
our  rates  of  toll  in  favor  of  our  own  people  in  order  to  secure  a  very 
great  profit  on  the  investment. 

Mr.  President,  in  view  of  that  declaration  of  principle,  in 
the  face  of  that  declaration,  the  United  States  cannot  afford 
to  take  a  position  at  variance  with  the  rule  of  universal 
equality  established  in  the  Suez  Canal  Convention  — 
equality  as  to  every  stockholder  and  all  non-stockholders, 
equality  as  to  every  nation  whether  in  possession  or  out 
of  possession.  In  the  face  of  that  declaration  the  United 
States  cannot  afford  to  take  any  other  position  than  upon 
the  rule  of  universal  equality  of  the  Suez  Canal  Convention, 
and  upon  the  further  declaration  that  the  country  owning 
the  territory  through  which  this  canal  was  to  be  built  would 
not  and  ought  not  to  give  any  special  advantage  or  prefer- 
ence to  the  United  States  as  compared  with  all  the  other 
nations  of  the  earth.  In  view  of  that  report,  the  Senate 
rejected  the  amendment  which  was  offered  by  Senator 


138  THE  BRIEF 

Bard,  of  California,  providing  for  preference  to  the  coast- 
wise trade  of  the  United  States.  This  is  the  amendment 
which  was  proposed: 

The  United  States  reserves  the  right  in  the  regulation  and 
management  of  the  canal  to  discriminate  in  respect  of  the  charges 
of  traffic  in  favor  of  vessels  of  its  own  citizens  engaged  in  the  coast- 
wise trade. 

I  say  the  Senate  rejected  that  amendment  upon  this 
report,  which  declared  the  rule  of  universal  equality  with- 
out any  preference  or  discrimination  in  favor  of  the  United 
States  as  being  the  meaning  of  the  treaty  and  the  necessary 
meaning  of  the  treaty. 

There  was  still  more  before  the  Senate,  there  was  still 
more  before  the  country  to  fix  the  meaning  of  the  treaty.  I 
have  read  the  representations  that  were  made,  the  solemn 
declarations  made  by  the  United  States  to  Great  Britain 
establishing  the  rule  of  absolute  equality  without  discrimi- 
nation in  favor  of  the  United  States  or  its  citizens  to  induce 
Great  Britain  to  enter  into  the  Clayton-Bulwer  Treaty. 

Now,  let  me  read  the  declaration  made  to  Great  Britain 
to  induce  her  to  modify  the  Clayton-Bulwer  Treaty  and 
give  up  her  right  to  joint  control  of  the  canal  and  put  in  our 
hands  the  sole  power  to  construct  it  or  patronize  it  or  con- 
trol it. 

Mr.  Blaine  said  in  his  instructions  to  Mr.  Lowell  on 
June  24,  1881,  directing  Mr.  Lowell  to  propose  to  Great 
Britain  the  modification  of  the  Clayton-Bulwer  Treaty,  — • 
I  read  his  words: 

The  United  States  recognizes  a  proper  guaranty  of  neutrality  as 
essential  to  the  construction  and  successful  operation  of  any  high- 
way across  the  Isthmus  of  Panama,  and  in  the  last  generation 
every  step  was  taken  by  this  Government  that  is  deemed  requisite 
in  the  premises.  The  necessity  was  foreseen  and  abundantly  pro- 
vided for,  long  in  advance  of  any  possible  call  for  the  actual  exer- 
cise of  power.  .  .  .  Nor,  in  time  of  peace,  does  the  United  States  seek 
to  have  any  exclusive  privileges  accorded  to  American  ships  in  respect 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS    139 

to  precedence  or  tolls  through  an  interoceanic  canal  any  more  than  it 
has  sought  like  privileges  f(yr  American  goods  in  transit  over  the 
Panama  Railway  y  under  the  excluMve  control  of  an  American  corpo- 
ration. The  extent  of  the  privileges  of  American  citizens  and  ships 
is  measurable  under  the  Treaty  of  1846  by  those  of  Colombian 
citizens  and  ships.  It  would  be  our  earnest  desire  and  expectation  to 
see  the  world's  peaceful  commerce  enjoy  the  same  jitst,  liberaly  and 
rational  treatment. 

Again,  he  said  to  Great  Britain: 

The  United  States,  as  I  have  before  had  occasion  to  assure  your 
Lordship,  demand  no  excluMve  privileges  in  these  passages,  but  will 
always  exert  their  influence  to  secure  their  free  and  unrestricted 
benefits,  both  in  peace  and  war,  to  the  commerce  of  the  world. 

Mr.  President,  it  was  upon  that  declaration,  upon  that 
self-denying  declaration,  upon  that  solemn  assurance,  that 
the  United  States  sought  not  and  would  not  have  any  pref- 
erence for  its  own  citizens  over  the  subjects  and  citizens  of 
other  countries  that  Great  Britain  abandoned  her  rights 
under  the  Clayton-Bulwer  Treaty  and  entered  into  the  Hay- 
Pauncefote  Treaty,  with  the  clause  continuing  the  princi- 
ples of  clause  8,  which  embodied  these  same  declarations, 
and  the  clause  establishing  the  rule  of  equality  taken  from 
the  Suez  Canal  Convention.  We  are  not  at  liberty  to  give 
any  other  construction  to  the  Hay-Pauncef ote  Treaty  than 
the  construction  which  is  consistent  with  that  declaration. 

Mr.  President,  these  declarations,  made  specifically  and 
directly  to  secure  the  making  of  these  treaties,  do  not  stand 
alone.  For  a  longer  period  than  the  oldest  Senator  has 
lived,  the  United  States  has  been  from  time  to  time  making 
open  and  public  declarations  of  her  disinterestedness,  her 
altruism,  her  purposes  for  the  benefit  of  mankind,  her  free- 
dom from  desire  or  willingness  to  secure  special  and  peculiar 
advantage  in  respect  of  transit  across  the  Isthmus.  In  1826 
Mr.  Clay,  then  Secretary  of  State  in  the  Cabinet  of  John 
Quincy  Adams,  said,  in  his  instructions  to  the  delegates  to 
the  I*anama  Congress  of  that  year: 


140  THE  BRIEF 

If  a  canal  across  the  Isthmus  be  opened  "so  as  to  admit  of  the 
passage  of  sea  vessels  from  ocean  to  ocean,  the  benefit  of  it  ought 
not  to  be  exclusively  appropriated  to  any  one  nation,  but  should 
be  extended  to  all  parts  of  the  globe  upon  the  payment  of  a  just 
compensation  for  reasonable  tolls." 

Mr.  Cleveland,  in  his  annual  message  of  1885,  said: 

The  lapse  of  years  has  abundantly  confirmed  the  wisdom  and 
foresight  of  those  earlier  administrations  which,  long  before  the 
conditions  of  maritime  intercourse  were  changed  and  enlarged  by 
the  progress  of  the  age,  proclaimed  the  vital  need  of  interoceanic 
transit  across  the  American  Isthmus  and  consecrated  it  in  advance 
to  the  common  use  of  mankind  by  their  positive  declarations  and 
through  the  formal  obligations  of  treaties.  Toward  such  realiza- 
tion the  efforts  of  my  administration  will  be  applied,  ever  bearing 
in  mind  the  principles  on  which  it  must  rest  and  which  were  de- 
clared in  no  uncertain  tones  by  Mr.  Cass,  who,  while  Secretary  of 
State  in  1858,  announced  that  ''What  the  United  States  want  in 
Central  America,  next  to  the  happiness  of  its  people,  is  the  security 
and  neutrality  of  the  interoceanic  routes  which  lead  through  it." 

By  public  declarations,  by  the  solemn  asseverations  of 
our  treaties  with  Colombia  in  1846,  with  Great  Britain  in 
1850,  our  treaties  with  Nicaragua,  our  treaty  with  Great 
Britain  in  1901,  our  treaty  with  Panama  in  1903,  we  have 
presented  to  the  world  the  most  unequivocal  guaranty  of 
disinterested  action  for  the  common  benefit  of  mankind 
and  not  for  our  selfish  advantage. 

In  the  message  which  was  sent  to  Congress  by  President 
Roosevelt  on  the  4th  of  January,  1904,  explaining  the 
course  of  this  Government  regarding  the  revolution  in 
Panama  and  the  making  of  the  treaty  by  which  we  acquired 
all  the  title  that  we  have  upon  the  Isthmus,  President 
Roosevelt  said: 

If  ever  a  Government  could  be  said  to  have  received  a  mandate 
from  civilization  to  effect  an  object  the  accomplishment  of  which 
was  demanded  in  the  interest  of  mankind,  the  United  States  holds 
that  position  with  regard  to  the  interoceanic  canal. 

Mr.  President,  there  has  been  much  discussion  for  many 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     141 

years  among  authorities  upon  international  law  as  to 
whether  artificial  canals  for  the  convenience  of  commerce 
did  not  partake  of  the  character  of  natural  passageways  to 
such  a  degree  that,  by  the  rules  of  international  law,  equal- 
ity must  be  observed  in  the  treatment  of  mankind  by  the 
nation  which  has  possession  and  control.  Many  very  high 
authorities  have  asserted  that  that  rule  applies  to  the 
Panama  Canal  even  without  a  treaty.  We  base  our  title 
upon  the  right  of  mankind  in  the  Isthmus,  treaty  or  no 
treaty.  We  have  long  asserted,  beginning  with  Secretary 
Cass,  that  the  nations  of  Central  America  had  no  right 
to  debar  the  world  from  its  right  of  passage  across  the 
Isthmus.  Upon  that  view,  in  the  words  which  I  have  quoted 
from  President  Roosevelt's  message  to  Congress,  we  base 
the  justice  of  our  entire  action  upon  the  Isthmus,  which  re- 
sulted in  our  having  the  Canal  Zone.  We  could  not  have 
taken  it  for  our  selfish  interest;  we  could  not  have  taken  it 
for  the  purpose  of  securing  an  advantage  to  the  people  of 
the  United  States  over  the  other  peoples  of  the  world;  it 
was  only  because  civilization  had  its  rights  to  passage 
across  the  Isthmus  and  because  we  made  ourselves  the 
mandatory  of  civilization  to  assert  those  rights  that  we  are 
entitled  to  be  there  at  all.  On  the  principles  which  underlie 
our  action  and  upon  all  the  declarations  that  we  have 
made  for  more  than  half  a  century,  as  well  as  upon  the 
express  and  positive  stipulations  of  our  treaties,  we  are 
forbidden  to  say  we  have  taken  the  custody  of  the  Canal 
Zone  to  give  ourselves  any  right  of  preference  over  the 
other  civilized  nations  of  the  world  beyond  those  rights 
which  go  to  the  owner  of  a  canal  to  have  the  tolls  that  are 
charged  for  passage. 

Well,  Mr.  President,  asserting  that  we  were  acting  for 
the  common  benefit  of  mankind,  willing  to  accept  no  pref- 
erential right  of  our  own,  just  as  we  asserted  it  to  secure  the 
Clayton-Bulwer  Treaty,  just  as  we  asserted  it  to  secure  the 


142  THE  BRIEF 

Hay-Pauncefote  Treaty,  when  we  had  recognized  the  Re- 
public of  Panama,  we  made  a  treaty  with  her  on  the  18th 
of  November,  1903.  I  ask  your  attention  now  to  the  pro- 
visions of  that  treaty.  In  that  treaty  both  Panama  and  the 
United  States  recognize  the  fact  that  the  United  States  was 
acting,  not  for  its  own  special  and  selfish  interest,  but  in  the 
interest  of  mankind. 

The  suggestion  has  been  made  that  we  are  relieved  from 
the  obligations  of  our  treaties  with  Great  Britain  because 
the  Canal  Zone  is  our  territory.  It  is  said  that,  because  it 
has  become  ours,  we  are  entitled  to  build  the  canal  on  our 
own  territory  and  do  what  we  please  with  it.  Nothing  can 
be  further  from  the  fact.  It  is  not  our  territory,  except  in 
trust.  Article  2  of  the  treaty  with  Panama  provides : 

The  Republic  of  Panama  grants  to  the  United  States  in  perpe- 
tuity the  use,  occupation,  and  control  of  a  zone  of  land  and  land 
under  water  for  the  construction,  maintenance,  operation,  sanita- 
tion, and  protection  of  said  canal  — 

and  for  no  other  purpose  — 

of  the  width  of  ten  miles  extending  to  the  distance  of  five  miles  on 
each  side  of  the  center  line  of  the  route  of  the  canal  to  be  con- 
structed. 

The  Republic  of  Panama  further  grants  to  the  United  States  in 
perpetuity  the  use,  occupation,  and  control  of  any  other  lands 
and  waters  outside  of  the  zone  above  described  which  may  be 
necessary  and  convenient  for  the  construction,  maintenance, 
operation,  sanitation,  and  protection  of  the  said  canal  or  of  any 
auxiliary  canals  or  other  works  necessary  and  convenient  for  the 
construction,  maintenance,  operation,  sanitation,  and  protection 
of  the  said  enterprise. 

Article  3  provides: 

The  Republic  of  Panama  grants  to  the  United  States  all  the 
rights,  power,  and  authority  within  the  zone  mentioned  and  de- 
scribed in  article  2  of  this  agreement  — 

from  which  I  have  just  read  — 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     143 

and  within  the  limits  of  all  auxiliary  lands  and  waters  mentioned 
and  described  in  said  article  2,  which  the  United  States  would 
possess  and  exercise  if  it  were  the  sovereign  of  the  territory  within 
which  said  lands  and  waters  are  located,  to  the  entire  exclusion  of 
the  exercise  by  the  Republic  of  Panama  of  any  such  sovereign 
rights,  power,  or  authority. 

Article  5  provides: 

The  Republic  of  Panama  grants  to  the  United  States  in  per- 
petuity a  monopoly  for  the  construction,  maintenance,  and  opera- 
tion of  any  system  of  communication  by  means  of  canal  or  rail- 
road across  its  territory  between  the  Caribbean  Sea  and  the 
Pacific  Ocean. 

I  now  read  from  article  18: 

The  canal,  when  constructed,  and  the  entrances  thereto  shall 
be  neutral  in  perpetuity,  and  shall  be  opened  upon  the  terms  pro- 
vided for  by  section  1  of  article  3  of,  and  in  conformity  with  all 
the  stipulations  of,  the  treaty  entered  into  by  the  Governments  of 
the  United  States  and  Great  Britain  on  November  18,  1901. 

So,  Mr.  President,  far  from  our  being  relieved  of  the  ob- 
ligations of  the  treaty  with  Great  Britain  by  reason  of  the 
title  that  we  have  obtained  to  the  Canal  Zone,  we  have 
taken  that  title,  impressed  with  a  solemn  trust.  We  have 
taken  it  for  no  purpose  except  the  construction  and  mainte- 
nance of  a  canal  in  accordance  with  all  the  stipulations  of 
our  treaty  with  Great  Britain.  We  cannot  be  false  to  those 
stipulations  without  adding  to  the  breach  of  contract  a 
breach  of  the  trust  which  we  have  assumed,  according  to 
our  own  declarations,  for  the  benefit  of  mankind  as  the 
mandatory  of  civilization. 

In  anticipation  of  the  plainly-to-be-foreseen  contingency 
of  our  having  to  acquire  some  kind  of  title  in  order  to  con- 
struct the  canal,  the  Hay-Pauncefote  Treaty  provided 
expressly  in  article  4: 

It  is  agreed  that  no  change  of  territorial  sovereignty  or  of  in- 
ternational relations  of  the  country  or  countries  traversed  by  the 
before-mentioned  canal  shall  affect  the  general  principle  of  neu- 


144  THE  BRIEF 

tralization  or  the  obligation  of  the  high  contracting  parties  under 
the  present  treaty. 

So  you  will  see  that  the  treaty  with  Great  Britain  ex- 
pressly provides  that  its  obligations  shall  continue,  no 
matter  what  title  we  get  to  the  Canal  Zone;  and  the  treaty 
by  which  we  get  the  title  expressly  impresses  upon  it  as  a 
trust  the  obligations  of  the  treaty  with  Great  Britain.  How 
idle  it  is  to  say  that  because  the  Canal  Zone  is  ours  we  can 
do  with  it  what  we  please. 

There  is  another  suggestion  made  regarding  the  obliga- 
tions of  this  treaty,  and  that  is  that  matters  relating  to  the 
coasting  trade  are  matters  of  special  domestic  concern,  and 
that  nobody  else  has  any  right  to  say  anything  about  them. 
We  did  not  think  so  when  we  were  dealing  with  the  Cana- 
dian canals.  But  that  may  not  be  conclusive  as  to  rights 
under  this  treaty.  But  examine  it  for  a  moment. 

It  is  rather  poverty  of  language  than  a  genius  for  defini- 
tion which  leads  us  to  call  a  voyage  from  New  York  to 
San  Francisco,  passing  along  countries  thousands  of  miles 
away  from  our  territory,  "coasting  trade,"  or  to  call  a  voy- 
age from  New  York  to  Manila,  on  the  other  side  of  the 
world,  "coasting  trade."  When  we  use  the  term  "coasting 
trade,"  what  we  really  mean  is  that  under  our  navigation 
laws  a  voyage  which  begins  and  ends  at  an  American  port 
has  certain  privileges  and  immunities  and  rights,  and  it  is 
necessarily  in  that  sense  that  the  term  is  used  in  this 
statute.  It  must  be  construed  in  accordance  with  our 
statutes. 

Sir,  I  do  not  for  a  moment  dispute  that  ordinary  coasting 
trade  is  a  special  kind  of  trade  that  is  entitled  to  be  treated 
differently  from  trade  to  or  from  distant  foreign  points.  It 
is  ordinarily  neighborhood  trade,  from  port  to  port,  by 
which  the  people  of  a  country  carry  on  their  intercommuni- 
cation, often  by  small  vessels,  poor  vessels,  carrying  car- 
goes of  slight  value.    It  would  be  quite  impracticable  to 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     145 

impose  upon  trade  of  that  kind  the  same  kind  of  burdens 
which  great  ocean-going  steamers,  trading  to  the  farthest 
parts  of  the  earth,  can  well  bear.  We  make  that  distinction. 
Indeed,  Great  Britain  herself  makes  it,  although  Great 
Britain  admits  all  the  world  to  her  coasting  trade.  But  it 
is  by  quite  a  different  basis  of  classification  —  that  is,  the 
statutory  basis  —  that  we  call  a  voyage  from  the  eastern 
coast  of  the  United  States  to  the  Orient  a  coasting  voyage, 
because  it  begins  and  ends  in  an  American  port. 

This  is  a  special,  peculiar  kind  of  trade  which  passes 
through  the  Panama  Canal.  You  may  call  it  "coasting 
trade,"  but  it  is  unlike  any  other  coasting  trade.  It  is  spe- 
cial and  peculiar  to  itself. 

Grant  that  we  are  entitled  to  fix  a  different  rate  of  tolls 
for  that  class  of  trade  from  that  which  would  be  fixed  for 
other  classes  of  trade.  Ah,  yes;  but  Great  Britain  has  her 
coasting  trade  through  the  canal  under  the  same  definition, 
and  Mexico  has  her  coasting  trade,  and  Germany  has  her 
coasting  trade,  and  Colombia  has  her  coasting  trade,  in  the 
same  sense  that  we  have.  You  are  not  at  liberty  to  dis- 
criminate in  fixing  tolls  between  a  voyage  from  Portland, 
Maine,  to  Portland,  Oregon,  by  an  American  ship,  and  a 
voyage  from  Plalifax  to  Victoria  in  a  British  ship,  or  a  voy- 
age from  Vera  Cruz  to  Acapulco  in  a  Mexican  ship,  because 
when  you  do  so  you  discriminate,  not  between  coasting 
trade  and  other  trade,  but  between  American  ships  and 
British  ships,  Mexican  ships,  or  Colombian  ships.  That  is  a 
violation  of  the  rule  of  equality  which  we  have  solemnly 
adopted,  and  asserted  and  reasserted,  and  to  which  we  are 
bound  by  every  consideration  of  honor  and  good  faith. 
Whatever  this  treaty  means,  it  means  for  that  kind  of  trade 
as  well  as  for  any  other  kind  of  trade. 

The  suggestion  has  been  made,  also,  that  we  should  not 
consider  that  the  provision  in  this  treaty  about  equality  as 
to  tolls  really  means  what  it  says,  because  it  is  not  to  be 


146  THE  BRIEF 

supposed  that  the  United  States  would  give  up  the  right 
to  defend  itself,  to  protect  its  own  territory,  to  land  its  own 
troops,  and  to  send  through  the  canal  as  it  pleases  its  own 
ships  of  war.  That  is  disposed  of  by  the  considerations 
which  were  presented  to  the  Senate  in  the  Davis  report,  to 
which  I  have  already  referred,  in  regard  to  the  Suez  Con- 
vention. 

The  Suez  Convention,  from  which  these  rules  of  the  Hay- 
Pauncef ote  Treaty  were  taken  almost  —  though  not  quite 
—  textually,  contained  other  provisions  which  reserved  to 
Turkey  and  to  Egypt,  as  sovereigns  of  the  territory  through 
which  the  canal  passed,  —  Egypt  as  the  sovereign  and 
Turkey  as  the  suzerain  over  Egypt,  —  all  of  the  rights  that 
pertained  to  sovereigns  for  the  protection  of  their  own 
territory.  As  when  the  Hay-Pauncefote  Treaty  was  made 
neither  party  to  the  treaty  had  any  title  to  the  region  which 
would  be  traversed  by  the  canal,  no  such  clauses  could  be 
introduced.  But,  as  was  pointed  out,  the  rules  which  were 
taken  from  the  Suez  Canal  for  the  control  of  the  canal 
management  would  necessarily  be  subject  to  these  rights 
of  sovereignty  which  were  still  to  be  secured  from  the 
countries  owning  the  territory.  That  is  recognized  by  the 
British  Government  in  the  note  which  has  been  sent  to  us 
and  has  been  laid  before  the  Senate,  or  is  in  the  possession 
of  the  Senate,  from  the  British  Foreign  Office. 

In  Sir  Edward  Grey's  note  of  November  14, 1912,  he  says 
what  I  am  about  to  read.  This  is  an  explicit  disclaimer  of 
any  contention  that  the  provisions  of  the  Hay-Pauncefote 
Treaty  exclude  us  from  the  same  rights  of  protection  of 
territory  which  Nicaragua  or  Colombia  or  Panama  would 
have  had  as  sovereigns,  and  which  we  succeed  to,  pro  tanto, 
by  virtue  of  the  Panama  Canal  Treaty. 

Sir  Edward  Grey  says: 

I  notice  that  in  the  course  of  the  debate  in  the  Senate  on  the 
Panama  Canal  Bill  the  argument  was  used  by  one  of  the  speakers 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     147 

that  the  third,  fourth,  and  fifth  rules  embodied  in  article  3  of  the 
treaty  show  that  the  words  "all  nations"  cannot  include  the 
United  States,  because,  if  the  United  States  were  at  war,  it  is  im- 
possible to  believe  that  it  could  be  intended  to  be  debarred  by  the 
treaty  from  using  its  own  territory  for  revictualling  its  warships 
or  landing  troops. 

The  same  point  may  strike  others  who  read  nothing  but  the  text 
of  the  Hay-Pauncefote  Treaty  itself,  and  I  think  it  is  therefore 
worth  while  that  I  should  briefly  show  that  this  argument  is  not 
well  founded. 

I  read  this  not  as  an  argument,  but  because  it  is  a  formal, 
official  disclaimer  which  is  binding. 
Sir  Edward  Grey  proceeds: 

The  Hay-Pauncefote  Treaty  of  1901  aimed  at  carrying  out  the 
principle  of  the  neutralization  of  the  Panama  Canal  by  subjecting 
it  to  the  same  regime  as  the  Suez  Canal.  Rules  3,  4,  and  5  of 
article  3  of  the  treaty  are  taken  almost  textually  from  articles  4, 
5,  and  6  of  the  Suez  Canal  Convention  of  1888.  At  the  date  of 
the  signature  of  the  Hay-Pauncefote  Treaty  the  territory  on 
which  the  Isthmian  Canal  was  to  be  constructed  did  not  belong  to 
the  United  States,  consequently  there  was  no  need  to  insert  in  the 
draft  treaty  provisions  corresponding  to  those  in  articles  10  and 
13  of  the  Suez  Canal  Convention,  which  preserve  the  sovereign 
rights  of  Turkey  and  of  Egypt,  and  stipulate  that  articles  4  and  5 
shall  not  affect  the  right  of  Turkey,  as  the  local  sovereign,  and  of 
Egypt,  within  the  measure  of  her  autonomy,  to  take  such  meas- 
ures as  may  be  necessary  for  securing  the  defense  of  Egypt  and 
the  maintenance  of  public  order,  and,  in  the  case  of  Turkey,  the 
defense  of  her  possessions  on  the  Red  Sea. 

Now  that  the  United  States  has  become  the  practical  sovereign 
of  the  canal,  His  Majesty's  Government  do  not  question  its  title 
to  exercise  belligerent  rights  for  its  protection. 

Mr.  President,  Great  Britain  has  asserted  the  construc- 
tion of  the  Hay-Pauncefote  Treaty  of  1901,  the  arguments 
for  which  I  have  been  stating  to  the  Senate.  I  realize,  sir, 
that  I  may  be  wrong.  I  have  often  been  wrong.  I  realize 
that  the  gentlemen  who  have  taken  a  diflerent  view  re- 
garding the  meaning  of  this  treaty  may  be  right.  I  do  not 


148  THE  BRIEF 

think  so.  But  their  abihty  and  fairness  of  mind  would 
make  it  idle  for  me  not  to  entertain  the  possibiHty  that 
they  are  right  and  I  am  wrong.  Yet,  Mr.  President,  the 
question  whether  they  are  right  and  I  am  wrong  depends 
upon  the  interpretation  of  the  treaty.  It  depends  upon  the 
interpretation  of  the  treaty  in  the  light  of  all  the  declara- 
tions that  have  been  made  by  the  parties  to  it,  in  the  light 
of  the  nature  of  the  subject-matter  with  which  it  deals. 

Gentlemen  say  the  question  of  imposing  tolls  or  not  im- 
posing tolls  upon  our  coastwise  commerce  is  a  matter  of 
our  concern.  Ah!  we  have  made  a  treaty  about  it.  If  the 
interpretation  of  the  treaty  is  as  England  claims,  then  it  is 
not  a  matter  of  our  concern;  it  is  a  matter  of  treaty  rights 
and  duties.  But,  sir,  it  is  not  a  question  as  to  our  rights  to 
remit  tolls  to  our  commerce.  It  is  a  question  whether  we 
can  impose  tolls  upon  British  commerce  when  we  have  re- 
mitted them  from  our  own.  That  is  the  question.  Nobody 
disputes  our  right  to  allow  our  own  ships  to  go  through  the 
canal  without  paying  tolls.  What  is  disputed  is  our  right 
to  charge  tolls  against  other  ships  when  we  do  not  charge 
them  against  our  own.  That  is,  pure  and  simple,  a  question 
of  international  right  and  duty,  and  depends  upon  the  in- 
terpretation of  the  treaty. 

Sir,  we  have  another  treaty,  made  between  the  United 
States  and  Great  Britain  on  the  4th  of  April,  1908,  in  which 
the  two  nations  have  agreed  as  follows: 

Differences  which  may  arise  of  a  legal  nature  or  relating  to  the 
interpretation  of  treaties  existing  between  the  two  contracting 
parties  and  which  it  may  not  have  been  possible  to  settle  by  diplo- 
macy, shall  be  referred  to  the  Permanent  Court  of  Arbitration  es- 
tablished at  The  Hague  by  the  convention  of  the  29th  of  July, 
1899,  provided,  nevertheless,  that  they  do  not  affect  the  vital 
interests,  the  independence,  or  the  honor  of  the  two  contracting 
States,  and  do  not  concern  the  interests  of  third  parties. 

Of  course,  the  question  of  the  rate  of  tolls  on  the  Panama 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     149 

Canal  does  not  affect  any  nation's  vital  interests.  It  does 
not  affect  the  independence  or  the  honor  of  either  of  these 
contracting  States.  We  have  a  difference  relating  to  the 
interpretation  of  this  treaty,  and  that  is  all  there  is  to  it. 
We  are  bound,  by  this  treaty  of  arbitration,  not  to  stand 
with  arrogant  assertion  upon  our  own  Government's 
opinion  as  to  the  interpretation  of  the  treaty,  not  to  require 
that  Great  Britain  shall  suffer  what  she  deems  injustice  by 
violation  of  the  treaty,  or  else  go  to  war.  We  are  bound  to 
say,  "We  keep  the  faith  of  our  treaty  of  arbitration,  and 
we  will  submit  the  question  as  to  what  this  treaty  means 
to  an  impartial  tribunal  of  arbitration." 

Mr.  President,  if  we  stand  in  the  position  of  arrogant 
refusal  to  submit  the  questions  arising  upon  the  interpreta- 
tion of  this  treaty  to  arbitration,  we  shall  not  only  violate 
our  solemn  obhgation,  but  we  shall  be  false  to  all  the 
principles  that  we  have  asserted  to  the  world,  and  that  we 
have  urged  upon  mankind.  We  have  been  the  apostle  of 
arbitration.  We  have  been  urging  it  upon  the  other  civi- 
lized nations.  Presidents,  Secretaries  of  State,  Ambassa- 
dors, and  Ministers  —  aye.  Congresses,  the  Senate  and  the 
House,  all  branches  of  our  Government  have  committed  the 
United  States  to  the  principle  of  arbitration  irrevocably, 
unequivocally,  and  we  have  urged  it  in  season  and  out  of 
season  on  the  rest  of  mankind. 

Sir,  I  cannot  detain  the  Senate  by  more  than  beginning 
upon  the  expressions  that  have  come  from  our  Govern- 
ment upon  this  subject,  but  I  will  ask  your  indulgence 
while  I  call  your  attention  to  a  few  selected  from  the  others. 

On  the  9th  of  June,  1874,  the  Senate  Committee  on 
Foreign  Relations  reported  and  the  Senate  adopted  this 
resolution : 

Resolved,  That  the  United  States,  having  at  heart  the  cause  of 
peace  everywhere,  and  hoping  to  help  its  permanent  establishment 
between  nations,  hereby  recommend  the  adoption  of  arbitration 


150  THE  BRIEF 

as  a  great  and  practical  method  for  the  determination  of  inter- 
national difference,  to  be  maintained  sincerely  and  in  good  faith, 
so  that  war  may  cease  to  be  regarded  as  a  proper  form  of  trial 
between  nations. 

On  the  17th  of  June,  1874,  the  Committee  on  Foreign 
Affairs  of  the  House  adopted  this  resolution: 

Whereas  war  is  at  all  times  destructive  of  the  material  interests 
of  a  people,  demoralizing  in  its  tendencies,  and  at  variance  with 
an  enlightened  public  sentiment;  and  whereas  differences  between 
nations  should  in  the  interests  of  humanity  and  fraternity  he  ad- 
justed,  if  possible,  by  international  arbitration  :  Therefore, 

Resolved,  That  the  people  of  the  United  States,  being  devoted  to 
the  policy  of  peace  with  all  mankind,  enjoining  its  blessings  and 
hoping  for  its  permanence  and  its  universal  adoption,  hereby 
through  their  representatives  in  Congress  recommend  such  arbi- 
tration as  a  rational  substitute  for  war;  and  they  further  recom- 
mend to  the  treaty-making  power  of  the  Government  to  provide, 
if  practicable,  that  hereafter  in  treaties  made  between  the  United 
States  and  foreign  powers  war  shall  not  be  declared  by  either  of 
the  contracting  parties  against  the  other  until  efforts  shall  have 
been  made  to  adjust  all  alleged  cause  of  difference  by  impartial 
arbitration. 

On  the  same  17th  of  June,  1874,  the  Senate  adopted  this 
resolution: 

Resolved,  etc..  That  the  President  of  the  United  States  is  hereby 
authorized  and  requested  to  negotiate  with  all  civilized  powers 
who  may  be  willing  to  enter  into  such  negotiations  for  the  estab- 
lishment of  an  international  system  whereby  matters  in  dispute 
between  different  Governments  agreeing  thereto  may  be  adjusted 
by  arbitration,  and,  if  possible,  without  recourse  to  war. 

On  the  14th  of  June,  1888,  and  again  on  the  14th  of 
February,  1890,  the  Senate  and  the  House  adopted  a  con- 
current resolution  in  the  words  which  I  now  read: 

Resolved  by  the  Senate  (the  House  of  Representatives  concurring). 
That  the  President  be,  and  is  hereby,  requested  to  invite,  from 
time  to  time,  as  fit  occasions  may  arise,  negotiations  with  any 
Government  with  which  the  United  States  has,  or  may  have. 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     151 

diplomatic  relations,  to  the  end  that  any  differences  or  disputes 
arising  between  the  two  Governments  which  cannot  be  adjusted 
by  diplomatic  agency  may  be  referred  to  arbitration  and  be  peace- 
ably adjusted  by  such  means. 

This  was  concurred  in  by  the  House  on  the  3d  of  April, 
1890. 

Mr.  President,  in  pursuance  of  those  declarations  by 
both  Houses  of  Congress  the  Presidents  and  the  Secretaries 
of  State  and  the  diplomatic  agents  of  the  United  States, 
doing  their  bounden  duty,  have  been  urging  arbitration 
upon  the  people  of  the  world.  Our  representatives  in  The 
Hague  Conference  of  1899,  and  in  The  Hague  Conference 
of  1907,  and  in  the  Pan-American  Conference  in  Washing- 
ton, and  in  the  Pan-American  Conference  in  Mexico,  and  in 
the  Pan-American  Conference  in  Rio  de  Janeiro  were  in- 
structed to  urge  and  did  urge  and  pledge  the  United  States 
in  the  most  unequivocal  and  urgent  terms  to  support  the 
principle  of  arbitration  upon  all  questions  capable  of  being 
submitted  to  a  tribunal  for  a  decision. 

Under  those  instructions  Mr.  Hay  addressed  the  people 
of  the  entire  civilized  world  with  the  request  to  come  into 
treaties  of  arbitration  with  the  United  States.  Here  was 
his  letter.  After  quoting  from  the  resolutions  and  from 
expressions  by  the  President  he  said: 

Moved  by  these  views,  the  President  has  charged  me  to  in- 
struct you  to  ascertain  whether  the  Government  to  which  you  are 
accredited,  which  he  has  reason  to  believe  is  equally  desirous  of 
advancing  the  principle  of  international  arbitration,  is  willing  to 
conclude  with  the  Government  of  the  United  States  an  arbitration 
treaty  of  like  tenor  to  the  arrangement  concluded  between  France 
and  Great  Britain  on  October  14,  1903. 

That  was  the  origin  of  this  treaty.  The  treaties  made  by 
Mr.  Hay  were  not  satisfactory  to  the  Senate  because  of  the 
question  about  the  participation  of  the  Senate  in  the  make- 
up of  the  special  agreement  of  submission.  Mr.  Hay's 
successor  modified  that  on  conference  with  the  Committee 


152  THE  BRIEF 

on  Foreign  Relations  of  the  Senate,  and  secured  the  assent 
of  the  other  countries  of  the  world  to  the  treaty  with  that 
modification.  We  have  made  twenty-five  of  these  treaties 
of  arbitration,  covering  the  greater  part  of  the  world,  under 
the  direction  of  the  Senate  of  the  United  States  and  the 
House  of  Representatives  of  the  United  States  and  in 
accordance  with  the  traditional  policy  of  the  United  States, 
holding  up  to  the  world  the  principle  of  peaceful  arbitra- 
tion. 

One  of  these  treaties  is  here,  and  under  it  Great  Britain  is 
demanding  that  the  question  as  to  what  the  true  interpreta- 
tion of  our  treaty  about  the  canal  is  shall  be  submitted  to 
decision  and  not  be  made  the  subject  of  war  or  of  sub- 
mission to  what  she  deems  injustice  to  avoid  war. 

In  response  to  the  last  resolution  which  I  have  read,  the 
concurrent  resolution  passed  by  the  Senate  and  the  House 
requesting  the  President  to  enter  into  the  negotiations 
which  resulted  in  these  treaties  of  arbitration,  the  British 
House  of  Commons  passed  a  resolution  accepting  the  over- 
ture. On  the  16th  of  July,  1893,  the  House  of  Commons 
adopted  this  resolution: 

Resolved,  That  this  house  has  learnt  with  satisfaction  that  both 
Houses  of  the  United  States  Congress  have,  by  resolution,  re- 
quested the  President  to  invite  from  time  to  time,  as  fit  occasions 
may  arise,  negotiations  with  any  Government  with  which  the 
United  States  have  or  may  have  diplomatic  relations,  to  the  end 
that  any  differences  or  disputes  arising  between  the  two  Govern- 
ments which  cannot  be  adjusted  by  diplomatic  agency  may  be 
referred  to  arbitration  and  peaceably  adjusted  by  such  means,  and 
that  this  house,  cordially  sympathizing  with  the  purpose  in  view, 
expresses  the  hope  that  Her  Majesty's  Government  will  lend  their 
ready  cooperation  to  the  Government  of  the  United  States  upon 
the  basis  of  the  foregoing  resolution. 

Her  Majesty's  Government  did,  and  thence  came  this 
treaty. 

Mr.  President,  what  revolting  hypocrisy  we  convict  our- 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     153 

selves  of,  if,  after  all  this,  the  first  time  there  comes  up  a 
question  in  which  we  have  an  interest,  the  first  time  there 
comes  up  a  question  of  difference  about  the  meaning  of  a 
treaty  as  to  which  we  fear  we  may  be  beaten  in  an  arbitra- 
tion, we  refuse  to  keep  our  agreement !  Where  will  be  our 
self-respect  if  we  do  that?  Where  will  be  that  respect  to 
which  a  great  nation  is  entitled  from  the  other  nations  of 
the  earth? 

I  have  read  from  what  Congress  has  said. 

Let  me  read  something  from  President  Grant's  annual 
message  of  December  4,  1871.  He  is  commenting  upon  the 
arbitration  provisions  of  the  Treaty  of  1871,  in  which  Great 
Britain  submitted  to  arbitration  our  claims  against  her, 
known  as  the  Alabama  claims,  in  which  Great  Britain  sub- 
mitted those  claims  where  she  stood  possibly  to  lose  but  not 
possibly  to  gain  anything,  and  submitted  them  against  the 
most  earnest  and  violent  protest  of  many  of  her  own  citi- 
zens.   General  Grant  said : 

The  year  has  been  an  eventful  one  in  witnessing  two  great 
nations  speaking  one  language  and  having  one  lineage,  settHng 
by  peaceful  arbitration  disputes  of  long  standing  and  liable  at  any 
time  to  bring  those  nations  into  costly  and  bloody  conflict.  An 
example  has  been  set  which,  if  successful  in  its  final  issue,  may 
be  followed  by  other  civilized  nations  and  finally  be  the  means  of 
returning  to  productive  industry  millions  of  men  now  maintained 
to  settle  the  disputes  of  nations  by  the  bayonet  and  by  broadside. 

Under  the  authority  of  these  resolutions  our  delegates  in 
the  first  Pan-American  Conference  at  Washington  secured 
the  adoption  of  this  resolution  April  18,  1890: 

Article  1.  The  Republics  of  North,  Central,  and  South  America 
hereby  adopt  arbitration  as  a  principle  of  American  international 
law  for  the  settlement  of  the  differences,  disputes,  or  controversies 
that  may  arise  between  two  or  more  of  them. 

And  this: 

The  International  American  Conference  resolves  that  this  con- 
ference, having  recommended  arbitration  for  the  settlement  of 


154  THE  BRIEF 

disputes  among  the  Republics  of  America,  begs  leave  to  express 
the  wish  that  controversies  between  them  and  the  nations  of 
Europe  may  be  settled  in  the  same  friendly  manner. 

It  is  further  recommended  that  the  Government  of  each  nation 
herein  represented  communicate  this  wish  to  all  friendly  powers. 

Upon  that  Mr.  Blaine,  that  most  vigorous  and  virile 
American,  in  his  address  as  the  presiding  oflBcer  of  that 
first  Pan-American  Conference  in  Washington  said : 

If,  in  this  closing  hour,  the  conference  had  but  one  deed  to  cele- 
brate we  should  dare  call  the  world's  attention  to  the  deliberate, 
confident,  solemn  dedication  of  two  great  continents  to  peace  and 
to  the  prosperity  which  has  peace  for  its  foundation.  We  hold  up 
this  new  Magna  Charta,  which  abolishes  war  and  substitutes  ar- 
bitration between  the  American  Republics,  as  the  first  and  great 
fruit  of  the  International  American  Conference.  That  noblest  of 
Americans,  the  aged  poet  and  philanthropist,  Whittier,  is  the 
first  to  send  his  salutation  and  his  benediction,  declaring,  "If  in 
the  spirit  of  peace  the  American  conference  agrees  upon  a  rule  of 
arbitration  which  shall  make  war  in  this  hemisphere  well-nigh 
impossible,  its  sessions  will  prove  one  of  the  most  important  events 
in  the  history  of  the  world." 

President  Arthur,  in  his  annual  message  of  December  4, 
1882,  said,  in  discussing  the  proposition  for  a  Pan-American 
Conference: 

I  am  unwilling  to  dismiss  this  subject  without  assuring  you  of 
my  support  of  any  measure  the  wisdom  of  Congress  may  devise 
for  the  promotion  of  peace  on  this  continent  and  throughout  the 
world,  and  I  trust  the  time  is  nigh  when,  with  the  universal  assent 
of  civilized  peoples,  all  international  differences  shall  be  deter- 
mined without  resort  to  arms  by  the  benignant  processes  of  arbi- 
tration. 

President  Harrison,  in  his  message  of  December  3,  1889, 
said  concerning  the  Pan-American  Conference: 

But  while  the  commercial  results  which  it  is  hoped  will  follow 
this  conference  are  worthy  of  pursuit  and  of  the  great  interests 
they  have  excited,  it  is  believed  that  the  crowning  benefit  will  be 
found  in  the  better  securities  which  may  be  devised  for  the  main- 
tenance of  peace  among  all  American  nations  and  the  settlement 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     155 

of  all  contentions  by  methods  that  a  Christian  civilization  can 
approve. 

President  Cleveland,  in  his  message  of  December  4, 
1893,  said,  concerning  the  resolution  of  the  British  Parha- 
ment  of  July  16, 1893,  which  I  have  already  read,  and  com- 
menting on  the  concurrent  resolution  of  February  14  and 
April  18,  1890: 

It  affords  me  signal  pleasure  to  lay  this  parliamentary  resolu- 
tion before  the  Congress  and  to  express  my  sincere  gratification 
that  the  sentiment  of  two  great  kindred  nations  is  thus  authori- 
tatively manifested  in  favor  of  the  rational  and  peaceable  settle- 
ment of  international  quarrels  by  honorable  resort  to  arbitration. 

President  McKinley,  in  his  message  of  December  6, 1897, 
said: 

International  arbitration  cannot  be  omitted  from  the  list  of 
subjects  claiming  our  consideration.  Events  have  only  served  to 
strengthen  the  general  views  on  this  question  expressed  in  my 
inaugural  address.  The  best  sentiment  of  the  civilized  world  is 
moving  toward  the  settlement  of  differences  between  nations 
without  resorting  to  the  horrors  of  war.  Treaties  embodying  these 
humane  principles  on  broad  lines  without  in  any  way  imperilling 
our  interests  or  our  honor  shall  have  my  constant  encouragement. 

President  Roosevelt,  in  his  message  of  December  3, 1905, 
said: 

I  earnestly  hope  that  the  conference  — 

the  second  Hague  Conference  — 

may  be  able  to  devise  some  way  to  make  arbitration  between 
nations  the  customary  way  of  settling  international  disputes  in  all 
save  a  few  classes  of  cases,  which  should  themselves  be  sharply 
defined  and  rigidly  limited  as  the  present  governmental  and  social 
development  of  the  world  will  permit.  If  possible,  there  should 
be  a  general  arbitration  treaty  negotiated  among  all  nations 
represented  at  the  conference. 

Oh,  Mr.  President,  are  we  Pharisees?  Have  we  been  in- 
sincere and  false  .f*  Have  we  been  pretending  in  all  these 
long  years  of  resolution  and  declaration  and  proposal  and 


156  THE  BRIEF 

urgency  for  arbitration?  Are  we  ready  now  to  admit  that 
our  country,  that  its  Congresses  and  its  Presidents,  have 
all  been  guilty  of  false  pretense,  of  humbug,  of  talking  to 
the  galleries,  of  fine  words  to  secure  applause,  and  that  the 
instant  we  have  an  interest  we  are  ready  to  falsify  every 
declaration,  every  promise,  and  every  principle?  But  we 
must  do  that  if  we  arrogantly  insist  that  we  alone  will  de- 
termine upon  the  interpretation  of  this  treaty  and  will 
refuse  to  abide  by  the  agreement  of  our  treaty  of  arbi- 
tration. 

Mr.  President,  what  is  all  this  for?  Is  the  game  worth 
the  candle?  Is  it  worth  while  to  put  ourselves  in  a  position 
and  to  remain  in  a  position  to  maintain  which  we  may  be 
driven  to  repudiate  our  principles,  our  professions,  and  our 
agreements  for  the  purpose  of  conferring  a  money  benefit, 

—  not  very  great,  not  very  important,  but  a  money  benefit, 

—  at  the  expense  of  the  Treasury  of  the  United  States, 
upon  the  most  highly  and  absolutely  protected  special  in- 
dustry in  the  United  States?  Is  it  worth  while?  We  refuse 
to  help  our  foreign  shipping,  which  is  in  competition  with 
the  lower  wages  and  the  lower  standard  of  living  of  foreign 
countries,  and  we  are  proposing  to  do  this  for  a  part  of 
our  coastwise  shipping  which  has  now  by  law  the  absolute 
protection  of  a  statutory  monopoly  and  which  needs  no 
help. 

Mr.  President,  there  is  but  one  alternative  consistent 
with  self-respect.  We  must  arbitrate  the  interpretation  of 
this  treaty  or  we  must  retire  from  the  position  we  have 
taken. 

O  Senators,  consider  for  a  moment  what  it  is  that  we  are 
doing.  We  all  love  our  country;  we  are  all  proud  of  its 
history;  we  are  all  full  of  hope  and  courage  for  its  future; 
we  love  its  good  name;  we  desire  for  it  that  power  among 
the  nations  of  the  earth  which  will  enable  it  to  accomplish 
still  greater  things  for  civilization  than  it  has  accomplished 


SPEECH  ON  THE  PANAMA  CANAL  TOLLS     157 

in  its  noble  past.  Shall  we  make  ourselves  in  the  minds  of 
the  world  like  unto  the  man  who  in  his  own  community  is 
marked  as  astute  and  cunning  to  get  out  of  his  obligations? 
Shall  we  make  ourselves  like  unto  the  man  who  is  known 
to  be  false  to  his  agreements;  false  to  his  pledged  word? 
Shall  we  have  it  understood  the  whole  world  over  that  "you 
must  look  out  for  the  United  States  or  she  will  get  the 
advantage  of  you";  that  we  are  clever  and  cunning  to  get 
the  better  of  the  other  party  to  an  agreement,  and  that  at 
the  end  — 

Mr.  Brandegee.  "Slippery"  would  be  a  better  word. 

Mr.  Root.  Yes;  I  thank  the  Senator  for  the  suggestion 
—  "slippery."  Shall  we  in  our  generation  add  to  those 
claims  to  honor  and  respect  that  our  fathers  have  estab- 
lished for  our  country  good  cause  that  we  shall  be  con- 
sidered "slippery"? 

It  is  worth  while,  Mr.  President,  to  be  a  citizen  of  a  great 
country,  but  size  alone  is  not  enough  to  make  a  country 
great.  A  country  must  be  great  in  its  ideals;  it  must  be 
great-hearted;  it  must  be  noble;  it  must  despise  and  reject 
all  smallness  and  meanness;  it  must  be  faithful  to  its  word; 
it  must  keep  the  faith  of  treaties;  it  must  be  faithful  to  its 
mission  of  civilization  in  order  that  it  shall  be  truly  great. 
It  is  because  we  believe  that  of  our  country  that  we  are 
proud,  aye,  that  the  alien  with  the  first  step  of  his  foot  upon 
our  soil  is  proud  to  be  a  part  of  this  great  democracy. 

Let  us  put  aside  the  idea  of  small,  petty  advantage;  let 
us  treat  this  situation  and  these  obligations  in  our  rela- 
tion to  this  canal  in  that  large  way  which  befits  a  great 
nation. 

Mr.  President,  how  sad  it  would  be  if  we  were  to  dim  the 
splendor  of  that  great  achievement  by  drawing  across  it  the 
mark  of  petty  selfishness;  if  we  were  to  diminish  and  reduce 
for  generations  to  come  the  power  and  influence  of  this  free 
Republic  for  the  uplifting  and  the  progress  of  mankind  by 


158  THE  BRIEF 

destroying  the  respect  of  mankind  for  us !  How  sad  it  would 
be  if  you  and  I,  Senators,  were  to  make  ourselves  responsi- 
ble for  destroying  that  bright  and  inspiring  ideal  which  has 
enabled  free  America  to  lead  the  world  in  progress  toward 
liberty  and  justice! 


SPEECH  ON  THE  SLAVERY  QUESTION        159 


4.    SPEECH   ON   THE   SLAVERY   QUESTION 

By  John  C.  Calhoun,  Senator  from  South  Carolina.^    Read  in  the 

Senate  March  ^,  1850,  by  James  M.  Mason^ 

Senator  from  Virginia 

This  speech  is  said  to  mark  the  culmination  of  Calhoun's  politi- 
cal career.  Although  seriously  ill,  he  came  to  the  Senate  on  March 
4,  but,  at  the  urgent  advice  of  his  friends,  he  did  not  undertake 
the  physical  strain  of  delivering  the  speech  that  he  had  carefully 
prepared;  he  gave  the  manuscript  to  Senator  James  M.  Mason, 
of  Virginia,  and  Mr.  Mason  read  it  with  dramatic  effect,  while 
Calhoun  sat  at  his  side.  Calhoun  was  able  to  appear  for  a  brief 
time  on  one  or  two  subsequent  occasions,  but  was  too  weak  to 
speak  at  any  length.  Scarcely  more  than  three  weeks  after  the 
reading  of  this  speech,  the  "Great  NuUifier  "  died  —  March  31, 
1850. 

I  HAVE,  Senators,  believed  from  the  first  that  the  agita- 
tion of  the  subject  of  slavery  would,  if  not  prevented  by 
some  timely  and  effective  measure,  end  in  disunion.  En- 
tertaining this  opinion,  I  have,  on  all  proper  occasions, 
endeavored  to  call  the  attention  of  both  the  two  great 
parties  which  div^ide  the  country  to  adopt  some  measure  to 
prevent  so  great  a  disaster,  but  without  success.  The  agi- 
tation has  been  permitted  to  proceed,  with  almost  no 
attempt  to  resist  it,  until  it  has  reached  a  point  when  it 
can  no  longer  be  disguised  or  denied  that  the  Union  is  in 
danger.  You  have  thus  had  forced  upon  you  the  greatest 
and  the  gravest  question  that  can  ever  come  under  your 
consideration  —  How  can  the  Union  be  preserved? 

To  give  a  satisfactory  answer  to  this  mighty  question, 
it  is  indispensable  to  have  an  accurate  and  thorough  knowl- 
edge of  the  nature  and  the  character  of  the  cause  by  which 

1  With  slight  alterations  in  punctuation,  from  The  Works  of  Calhoun, 
edited  by  Richard  K.  Cralle  (1857).  By  the  kind  permission  of  the  pub- 
lishers, D.  Appleton  &  Co. 


160  THE  BRIEF 

the  Union  is  endangered.  Without  such  knowledge  it  is 
impossible  to  pronounce,  with  any  certainty,  by  what 
measure  it  can  be  saved;  just  as  it  would  be  impossible  for 
a  physician  to  pronounce,  in  the  case  of  some  dangerous 
disease,  with  any  certainty,  by  what  remedy  the  patient 
could  be  saved,  without  similar  knowledge  of  the  nature 
and  character  of  the  cause  which  produced  it.  The  first 
question,  then,  presented  for  consideration,  in  the  investi- 
gation I  propose  to  make,  in  order  to  obtain  such  knowl- 
edge, is  —  What  is  it  that  has  endangered  the  Union? 

To  this  question  there  can  be  but  one  answer  —  That 
the  immediate  cause  is  the  almost  universal  discontent 
which  pervades  all  the  States  composing  the  Southern 
section  of  the  Union.  This  widely  extended  discontent  is 
not  of  recent  origin.  It  commenced  with  the  agitation  of 
the  slavery  question,  and  has  been  increasing  ever  since. 
The  next  question,  going  one  step  further  back,  is  —  What 
has  caused  this  widely  diffused  and  almost  universal  dis- 
content .^^ 

It  is  a  great  mistake  to  suppose,  as  is  by  some,  that  it 
originated  with  demagogues,  who  excited  the  discontent 
with  the  intention  of  aiding  their  personal  advancement, 
or  with  the  disappointed  ambition  of  certain  politicians, 
who  resorted  to  it  as  the  means  of  retrieving  their  fortunes. 
On  the  contrary,  all  the  great  political  influences  of  the 
section  were  arrayed  against  excitement,  and  exerted  to 
the  utmost  to  keep  the  people  quiet.  The  great  mass  of  the 
people  of  the  South  were  divided,  as  in  the  other  section, 
into  Whigs  and  Democrats.  The  leaders  and  the  presses  of 
both  parties  in  the  South  were  very  solicitous  to  prevent 
excitement  and  to  preserve  quiet;  because  it  was  seen  that 
the  effects  of  the  former  would  necessarily  tend  to  weaken, 
if  not  destroy,  the  political  ties  which  united  them  with 
their  respective  parties  in  the  other  section.  Those  who 
know  the  strength  of  party  ties  will  readily  appreciate  the 


SPEECH  ON  THE  SLAVERY  QUESTION        161 

immense  force  which  this  cause  exerted  against  agitation, 
and  in  favor  of  preserving  quiet.  But,  great  as  it  was,  it 
was  not  sufficient  to  prevent  the  widespread  discontent 
which  now  pervades  the  section.  No;  some  cause,  far 
deeper  and  more  powerful  than  the  one  supposed,  must 
exist,  to  account  for  discontent  so  wide  and  deep.  The 
question  then  recurs  —  What  is  the  cause  of  this  discon- 
tent? It  will  be  found  in  the  belief  of  the  people  of  the 
Southern  States,  as  prevalent  as  the  discontent  itself,  that 
they  cannot  remain,  as  things  now  are,  consistently  with 
honor  and  safety,  in  the  Union.  The  next  question  to  be 
considered  is  —  What  has  caused  this  belief.? 

One  of  the  causes  is,  undoubtedly,  to  be  traced  to  the 
long-continued  agitation  of  the  slave  question  on  the  part 
of  the  North,  and  the  many  aggressions  which  they  have 
made  on  the  rights  of  the  South  during  the  time.  I  will 
not  enumerate  them  at  present,  as  it  will  be  done  hereafter 
in  its  proper  place. 

There  is  another  lying  back  of  it  —  with  which  this  is 
intimately  connected  —  that  may  be  regarded  as  the  great 
and  primary  cause.  This  is  to  be  found  in  the  fact  that  the 
equilibrium  between  the  two  sections,  in  the  Government 
as  it  stood  when  the  Constitution  was  ratified  and  the 
Government  put  in  action,  has  been  destroyed.  At  that 
time  there  was  nearly  a  perfect  equilibrium  between  the  two, 
which  afforded  ample  means  to  each  to  protect  itself  against 
the  aggression  of  the  other;  but,  as  it  now  stands,  one  sec- 
tion has  the  exclusive  power  of  controlling  the  Government, 
which  leaves  the  other  without  any  adequate  means  of 
protecting  itself  against  its  encroachment  and  aggression. 
To  place  this  subject  distinctly  before  you,  I  have.  Senators, 
prepared  a  brief  statistical  statement,  showing  the  relative 
weight  of  the  two  sections  in  the  Government  under  the 
first  census  of  1790  and  the  last  census  of  1840. 

According  to  the  former,  the  population  of  the  United 


162  THE  BRIEF 

States,  including  Vermont,  Kentucky,  and  Tennessee, 
which  then  were  in  their  incipient  condition  of  becoming 
States  but  were  not  actually  admitted,  amounted  to 
3,997,827.  Of  this  number  the  Northern  States  had 
1,997,899,  and  the  Southern  1,952,072,  making  a  differ- 
ence of  only  45,827  in  favor  of  the  former  States.  The 
number  of  States,  including  Vermont,  Kentucky,  and 
Tennessee,  were  sixteen;  of  which  eight,  including  Ver- 
mont, belonged  to  the  Northern  section,  and  eight,  in- 
cluding Kentucky  and  Tennessee,  to  the  Southern  — 
making  an  equal  division  of  the  States  between  the  two 
sections  under  the  first  census. 

There  was  a  small  preponderance  in  the  House  of  Repre- 
sentatives and  in  the  Electoral  College  in  favor  of  the 
Northern,  owing  to  the  fact  that,  according  to  the  pro- 
visions of  the  Constitution,  in  estimating  federal  numbers 
five  slaves  count  but  three;  but  it  was  too  small  to  affect 
sensibly  the  perfect  equilibrium  which,  with  that  exception, 
existed  at  the  time.  Such  was  the  equality  of  the  two  sec- 
tions when  the  States  composing  them  agreed  to  enter  into 
a  Federal  Union.  Since  then  the  equilibrium  between  them 
has  been  greatly  disturbed. 

According  to  the  last  census  the  aggregate  population  of 
the  United  States  amounted  to  17,063,357,  of  which  the 
Northern  section  contained  9,728,920,  and  the  Southern 
7,334,437,  making  a  difference,  in  round  numbers,  of 
2,400,000.  The  number  of  States  had  increased  from  six- 
teen to  twenty-six,  making  an  addition  of  ten  States.  In 
the  mean  time  the  position  of  Delaware  had  become  doubt- 
ful as  to  which  section  she  properly  belonged.  Considering 
her  as  neutral,  the  Northern  States  will  have  thirteen  and 
the  Southern  States  twelve,  making  a  difference  in  the 
Senate  of  two  Senators  in  favor  of  the  former.  According 
to  the  apportionment  omder  the  census  of  1840,  there  were 
two  hundred  and  twenty-three  members  of  the  House  of 


SPEECH  ON  THE  SLAVERY  QUESTION        163 

Representatives,  of  which  the  Northern  States  had  one 
hundred  and  thirty-five,  and  the  Southern  States  (con- 
sidering Delaware  as  neutral)  eighty-seven,  making  a  differ- 
ence in  favor  of  the  former  in  the  House  of  Representatives 
of  forty-eight.  The  difference  in  the  Senate  of  two  members, 
added  to  this,  gives  to  the  North,  in  the  Electoral  College, 
a  majority  of  fifty.  Since  the  census  of  1840,  four  States 
have  been  added  to  the  Union  —  Iowa,  Wisconsin,  Florida, 
and  Texas.  They  leave  the  difference  in  the  Senate  as  it 
stood  when  the  census  was  taken;  but  add  two  to  the  side 
of  the  North  in  the  House,  making  the  present  majority  in 
the  House  in  its  favor  fifty,  and  in  the  Electoral  College 
fifty-two. 

The  result  of  the  whole  is  to  give  the  Northern  section  a 
predominance  in  every  department  of  the  Government,  and 
thereby  concentrate  in  it  the  two  elements  which  consti- 
tute the  Federal  Government  —  majority  of  States,  and  a 
majority  of  their  population,  estimated  in  federal  numbers. 
Whatever  section  concentrates  the  two  in  itself  possesses 
the  control  of  the  entire  Government. 

But  we  are  just  at  the  close  of  the  sixth  decade  and  the 
commencement  of  the  seventh.  The  census  is  to  be  taken 
this  year,  which  must  add  greatly  to  the  decided  prepon- 
derance of  the  North  in  the  House  of  Representatives  and  in 
the  Electoral  College.  The  prospect  is,  also,  that  a  great 
increase  will  be  added  to  its  present  preponderance  in  the 
Senate  during  the  period  of  the  decade,  by  the  addition 
of  new  States.  Two  Territories,  Oregon  and  Minnesota, 
are  already  in  progress,  and  strenuous  efforts  are  making 
to  bring  in  three  additional  States  from  the  territory  re- 
cently conquered  from  Mexico;  which,  if  successful,  will 
add  three  other  States  in  a  short  time  to  the  Northern  sec- 
tion, making  five  States;  and  increasing  the  present  num- 
ber of  its  States  from  fiif teen  to  twenty,  and  of  its  Senators 
from  thirty  to  forty.  On  the  contrary,  there  is  not  a  single 


164  THE  BRIEF 

Territory  in  progress  in  the  Southern  section,  and  no 
certainty  that  any  additional  State  will  be  added  to  it  dur- 
ing the  decade.  The  prospect,  then,  is  that  the  two  sections 
in  the  Senate,  should  the  efforts  now  made  to  exclude  the 
South  from  the  newly  acquired  Territories  succeed,  will 
stand,  before  the  end  of  the  decade,  twenty  Northern 
States  to  fourteen  Southern,  (considering  Delaware  as 
neutral,)  and  forty  Northern  Senators  to  twenty-eight 
Southern.  This  great  increase  of  Senators,  added  to  the 
great  increase  of  members  of  the  House  of  Representatives 
and  the  Electoral  College  on  the  part  of  the  North,  which 
must  take  place  under  the  next  decade,  will  effectually  and 
irretrievably  destroy  the  equilibrium  which  existed  when 
the  Government  commenced. 

Had  this  destruction  been  the  operation  of  time,  with- 
out the  interference  of  Government,  the  South  would  have 
had  no  reason  to  complain;  but  such  was  not  the  fact.  It 
was  caused  by  the  legislation  of  this  Government,  which 
was  appointed  as  the  common  agent  of  all  and  charged 
with  the  protection  of  the  interests  and  security  of  all. 
The  legislation  by  which  it  has  been  effected  may  be 
classed  under  three  heads.  The  first  is,  that  series  of  acts 
by  which  the  South  has  been  excluded  from  the  common 
territory  belonging  to  all  the  States  as  members  of  the 
Federal  Union  —  which  have  had  the  effect  of  extending 
vastly  the  portion  allotted  to  the  Northern  section,  and 
restricting  within  narrow  limits  the  portion  left  the  South. 
The  next  consists  in  adopting  a  system  of  revenue  and  dis- 
bursements, by  which  an  undue  proportion  of  the  burden 
of  taxation  has  been  imposed  upon  the  South,  and  an  un- 
due proportion  of  its  proceeds  appropriated  to  the  North; 
and  the  last  is  a  system  of  political  measures  by  which  the 
original  character  of  the  Government  has  been  radically 
changed.  I  propose  to  bestow  upon  each  of  these,  in  the 
order  they  stand,  a  few  remarks,  with  the  view  of  showing 


SPEECH  ON  THE  SLAVERY  QUESTION       165 

that  it  is  owing  to  the  action  of  this  Government  that  the 
equilibrium  between  the  two  sections  has  been  destroyed, 
and  the  whole  power  of  the  system  centered  in  a  sectional 
majority. 

The  first  of  the  series  of  acts  by  which  the  South  was 
deprived  of  its  due  share  of  the  Territories  originated  with 
the  Confederacy  which  preceded  the  existence  of  this 
Government.  It  is  to  be  found  in  the  provision  of  the  Ordi- 
nance of  1787.  Its  effect  was  to  exclude  the  South  entirely 
from  that  vast  and  fertile  region  which  lies  between  the 
Ohio  and  the  Mississippi  Rivers,  now  embracing  five  States 
and  one  Territory.  The  next  of  the  series  is  the  Missouri 
Compromise,  which  excluded  the  South  from  that  large 
portion  of  Louisiana  which  lies  north  of  36°  30',  excepting 
what  is  included  in  the  State  of  Missouri.  The  last  of  the 
series  excluded  the  South  from  the  whole  of  the  Oregon 
Territory.  All  these,  in  the  slang  of  the  day,  were  what  are 
called  slave  Territories,  and  not  free  soil;  that  is.  Territories 
belonging  to  slave-holding  powers  and  open  to  the  emigra- 
tion of  masters  with  their  slaves.  By  these  several  acts  the 
South  was  excluded  from  1,238,025  square  miles  —  an  ex- 
tent of  country  considerably  exceeding  the  entire  valley  of 
the  Mississippi.  To  the  South  was  left  the  portion  of  the 
Territory  of  Louisiana  lying  south  of  36°  30',  and  the  por- 
tion north  of  it  included  in  the  State  of  Missouri,  with  the 
portion  lying  south  of  36°  30',  including  the  States  of 
Louisiana  and  Arkansas,  and  the  Territory  lying  west  of 
the  latter,  and  south  of  36°  30',  called  the  Indian  Country. 
These,  with  the  Territory  of  Florida,  now  the  State,  make, 
in  the  whole,  283,503  square  miles.  To  this  must  be  added 
the  territory  acquired  with  Texas.  If  the  whole  should  be 
added  to  the  Southern  section,  it  would  make  an  increase 
of  325,520,  which  would  make  the  whole  left  to  the  South 
609,023.  But  a  large  part  of  Texas  is  still  in  contest  be- 
tween the  two  sections,  which  leaves  it  uncertain  what  will 


166  THE  BRIEF 

be  the  real  extent  of  the  portion  of  territory  that  may  be 
left  to  the  South. 

I  have  not  included  the  territory  recently  acquired  by 
the  treaty  with  Mexico.  The  North  is  making  the  most 
strenuous  efforts  to  appropriate  the  whole  to  herself,  by 
excluding  the  South  from  every  foot  of  it.  If  she  should 
succeed,  it  will  add  to  that  from  which  the  South  has  al- 
ready been  excluded  526,078  square  miles,  and  would  in- 
crease the  whole  which  the  North  has  appropriated  to  her- 
self to  1,764,123,  not  including  the  portion  that  she  may 
succeed  in  excluding  us  from  in  Texas.  To  sum  up  the 
whole,  the  United  States,  since  they  declared  their  inde- 
pendence, have  acquired  2,373,046  square  miles  of  terri- 
tory, from  which  the  North  will  have  excluded  the  South, 
if  she  should  succeed  in  monopolizing  the  newly  acquired 
territories,  about  three  fourths  of  the  whole,  leaving  to  the 
South  but  about  one  fourth. 

Such  is  the  first  and  great  cause  that  has  destroyed  the 
equilibrium  between  the  two  sections  in  the  Government. 

The  next  is  the  system  of  revenue  and  disbursements 
which  has  been  adopted  by  the  Government.  It  is  well 
known  that  the  Government  has  derived  its  revenue 
mainly  from  duties  on  imports.  I  shall  not  undertake  to 
show  that  such  duties  must  necessarily  fall  mainly  on  the 
exporting  States,  and  that  the  South,  as  the  great  export- 
ing section  of  the  Union,  has,  in  reality,  paid  vastly  more 
than  her  due  proportion  of  the  revenue;  because  I  deem  it 
unnecessary,  as  the  subject  has  on  so  many  occasions  been 
fully  discussed.  Nor  shall  I,  for  the  same  reason,  under- 
take to  show  that  a  far  greater  portion  of  the  revenue  has 
been  disbursed  at  the  North  than  its  due  share;  and  that 
the  joint  effect  of  these  causes  has  been  to  transfer  a  vast 
amount  from  South  to  North,  which,  under  an  equal  sys- 
tem of  revenue  and  disbursements,  would  not  have  been 
lost  to  her.   If  to  this  be  added  that  many  of  the  duties 


SPEECH  ON  THE  SLAVERY  QUESTION        167 

were  imposed,  not  for  revenue,  but  for  protection,  —  that 
is,  intended  to  put  money,  not  in  the  treasury,  but  directly 
in  the  pocket  of  the  manufacturers,  —  some  conception 
may  be  formed  of  the  immense  amount  which,  in  the  long 
course  of  sixty  years,  has  been  transferred  from  South  to 
North.  There  are  no  data  by  which  it  can  be  estimated 
with  any  certainty;  but  it  is  safe  to  say  that  it  amounts  to 
hundreds  of  millions  of  dollars.  Under  the  most  moderate 
estimate,  it  would  be  sufficient  to  add  greatly  to  the  wealth 
of  the  North,  and  thus  greatly  increase  her  population  by 
attracting  emigration  from  all  quarters  to  that  section. 

This,  combined  with  the  great  primary  cause,  amply 
explains  why  the  North  has  acquired  a  preponderance  in 
every  department  of  the  Government  by  its  disproportion- 
ate increase  of  population  and  States.  The  former,  as  has 
been  shown,  has  increased,  in  fifty  years,  2,400,000  over 
that  of  the  South.  This  increase  of  population,  during  so 
long  a  period,  is  satisfactorily  accounted  for  by  the  number 
of  emigrants  and  the  increase  of  their  descendants,  which 
have  been  attracted  to  the  Northern  section  from  Europe 
and  the  South  in  consequence  of  the  advantages  derived 
from  the  causes  assigned.  If  they  had  not  existed  —  if  the 
South  had  retained  all  the  capital  which  has  been  extracted 
from  her  by  the  fiscal  action  of  the  Government;  and,  if  she 
had  not  been  excluded  by  the  Ordinance  of  1787  and  the 
Missouri  Compromise  from  the  region  lying  between  the 
Ohio  and  the  Mississippi  Rivers,  and  between  the  Missis- 
sippi and  the  Rocky  Mountains  north  of  36°  30'  —  it 
scarcely  admits  of  a  doubt  that  she  would  have  divided 
the  emigration  with  the  North,  and,  by  retaining  her  own 
people,  would  have  at  least  equalled  the  North  in  popula- 
tion under  the  census  of  1840,  and  probably  under  that 
about  to  be  taken.  She  would  also,  if  she  had  retained  her 
equal  rights  in  those  territories,  have  maintained  an  equal- 
ity in  the  number  of  States  with  the  North,  and  have  pre- 


168  THE  BRIEF 

served  the  equilibrium  between  the  two  sections  that  ex- 
isted at  the  commencement  of  the  Government.  The  loss, 
then,  of  the  equilibrium  is  to  be  attributed  to  the  action  of 
this  Government. 

But  while  these  measures  were  destroying  the  equilib- 
rium between  the  two  sections  the  action  of  the  Govern- 
ment was  leading  to  a  radical  change  in  its  character,  by 
concentrating  all  the  power  of  the  system  in  itself.  The 
occasion  will  not  permit  me  to  trace  the  measures  by 
which  this  great  change  has  been  consummated.  If  it  did, 
it  would  not  be  difficult  to  show  that  the  process  com- 
menced at  an  early  period  of  the  Government;  and  that 
it  proceeded,  almost  without  interruption,  step  by  step, 
until  it  absorbed  virtually  its  entire  powers;  but,  without 
going  through  the  whole  process  to  establish  the  fact,  it 
may  be  done  satisfactorily  by  a  very  short  statement. 

That  the  Government  claims  and  practically  maintains 
the  right  to  decide,  in  the  last  resort,  as  to  the  extent  of  its 
powers  will  scarcely  be  denied  by  any  one  conversant  with 
the  political  history  of  the  country.  That  it  also  claims  the 
right  to  resort  to  force  to  maintain  whatever  power  it 
claims,  against  all  opposition,  is  equally  certain.  Indeed, 
it  is  apparent  from  what  we  daily  hear  that  this  has  be- 
come the  prevailing  and  fixed  opinion  of  a  great  majority 
of  the  community.  Now,  I  ask,  what  limitation  can  possi- 
bly be  placed  upon  the  powers  of  a  Government  claiming 
and  exercising  such  rights?  And,  if  none  can  be,  how  can 
the  separate  Governments  of  the  States  maintain  those 
which  are  reserved  to  them,  and,  among  others,  the  sov- 
ereign powers  by  which  they  ordained  and  established,  not 
only  their  separate  State  Constitutions  and  Governments, 
but  also  the  Constitution  and  Government  of  the  United 
States.?  But,  if  they  have  no  constitutional  means  of  main- 
taining them  against  the  right  claimed  by  this  Government, 
it  necessarily  follows  that  they  hold  them  at  its  pleasure 


SPEECH  ON  THE  SLAVERY  QUESTION        169 

and  discretion,  and  that  all  the  powers  of  the  system  are 
in  reality  concentrated  in  it.  It  also  follows  that  the  char- 
acter of  the  Government  has  been  changed  in  consequence 
from  a  federal  republic,  as  it  originally  came  from  the 
hands  of  its  framers,  into  a  great  national  consolidated 
democracy.  It  has,  indeed,  at  present,  all  the  characteris- 
tics of  the  latter,  and  not  one  of  the  former,  although  it 
still  retains  its  outward  form. 

The  result  of  the  whole  of  these  causes  combined  is  — 
that  the  North  has  acquired  a  decided  ascendency  over 
every  department  of  this  Government  and,  through  it,  a 
control  over  all  the  powers  of  the  system.  A  single  section 
governed  by  the  will  of  the  numerical  majority  has  now,  in 
fact,  the  control  of  the  Government  and  the  entire  powers 
of  the  system.  What  was  once  a  constitutional  federal  re- 
public is  now  converted,  in  reality,  into  one  as  absolute  as 
that  of  the  Autocrat  of  Russia,  and  as  despotic  in  its  tend- 
ency as  any  absolute  government  that  ever  existed. 

As,  then,  the  North  has  the  absolute  control  over  the 
Government,  it  is  manifest  that  on  all  questions  between  it 
and  the  South,  where  there  is  a  diversity  of  interests,  the 
interest  of  the  latter  will  be  sacrificed  to  the  former,  how- 
ever oppressive  the  effects  may  be;  as  the  South  possesses 
no  means  by  which  it  can  resist  through  the  action  of  the 
Government.  But,  if  there  was  no  question  of  vital  impor- 
tance to  the  South,  in  reference  to  which  there  was  a  diver- 
sity of  views  between  the  two  sections,  this  state  of  things 
might  be  endured  without  the  hazard  of  destruction  to  the 
South.  But  such  is  not  the  fact.  There  is  a  question  of  vital 
importance  to  the  Southern  section,  in  reference  to  which 
the  views  and  feelings  of  the  two  sections  are  as  opposite 
and  hostile  as  they  can  possibly  be. 

I  refer  to  the  relation  between  the  two  races  in  the 
Southern  section,  which  constitutes  a  vital  portion  of  her 
social  organization.  Every  portion  of  the  North  entertains 


170  THE  BRIEF 

views  and  feelings  more  or  less  hostile  to  it.  Those  most 
opposed  and  hostile  regard  it  as  a  sin,  and  consider  them- 
selves under  the  most  sacred  obligation  to  use  every  effort 
to  destroy  it.  Indeed,  to  the  extent  that  they  conceive  they 
have  power,  they  regard  themselves  as  implicated  in  the 
sin,  and  responsible  for  not  suppressing  it  by  the  use  of  all 
and  every  means.  Those  less  opposed  and  hostile  regard 
it  as  a  crime  —  an  offense  against  humanity,  as  they  call  it; 
and,  although  not  so  fanatical,  feel  themselves  bound  to 
use  all  efforts  to  effect  the  same  object;  while  those  who  are 
least  opposed  and  hostile  regard  it  as  a  blot  and  a  stain  on 
the  character  of  what  they  call  the  Nation,  and  feel  them- 
selves accordingly  bound  to  give  it  no  countenance  or  sup- 
port. On  the  contrary,  the  Southern  section  regards  the 
relation  as  one  which  cannot  be  destroyed  without  subject- 
ing the  two  races  to  the  greatest  calamity,  and  the  section 
to  poverty,  desolation,  and  wretchedness;  and,  accordingly, 
they  feel  bound,  by  every  consideration  of  interest  and 
safety,  to  defend  it. 

This  hostile  feeling  on  the  part  of  the  North  towards  the 
social  organization  of  the  South  long  lay  dormant,  but  it 
only  required  some  cause  to  act  on  those  who  felt  most 
intensely  that  they  were  responsible  for  its  continuance  to 
call  it  into  action.  The  increasing  power  of  this  Govern- 
ment, and  of  the  control  of  the  Northern  section  over  all  its 
departments,  furnished  the  cause.  It  was  this  which  made 
an  impression  on  the  minds  of  many  that  there  was  little  or 
no  restraint  to  prevent  the  Government  from  doing  what- 
ever it  might  choose  to  do.  This  was  sufficient  of  itself  to 
put  the  most  fanatical  portion  of  the  North  in  action,  for 
the  purpose  of  destroying  the  existing  relation  between  the 
two  races  in  the  South. 

The  first  organized  movement  towards  it  commenced  in 
1835.  Then,  for  the  first  time,  societies  were  organized, 
presses  established,  lecturers  sent  forth  to  excite  the  people 


SPEECH  ON  THE  SLAVERY  QUESTION        171 

of  the  North,  and  incendiary  publications  scattered  over 
the  whole  South  through  the  mail.  The  South  was  thor- 
oughly aroused.  Meetings  were  held  everywhere,  and  reso- 
lutions adopted,  calling  upon  the  North  to  apply  a  remedy 
to  arrest  the  threatened  evil,  and  pledging  themselves  to 
adopt  measures  for  their  own  protection  if  it  was  not 
arrested.  At  the  meeting  of  Congress,  petitions  poured  in 
from  the  North,  calling  upon  Congress  to  abolish  slavery  in 
the  District  of  Columbia,  and  to  prohibit  what  they  called 
the  internal  slave  trade  between  the  States  —  announcing, 
at  the  same  time,  that  their  ultimate  object  was  to  abolish 
slavery,  not  only  in  the  District,  but  in  the  States  and 
throughout  the  Union.  At  this  period  the  number  engaged 
in  the  agitation  was  small  and  possessed  little  or  no  personal 
injfluence. 

Neither  party  in  Congress  had,  at  that  time,  any  sym- 
pathy with  them  or  their  cause.  The  members  of  each 
party  presented  their  petitions  with  great  reluctance. 
Nevertheless,  small  and  contemptible  as  the  party  then 
was,  both  of  the  great  parties  of  the  North  dreaded  them. 
They  felt  that,  though  small,  they  were  organized  in  refer- 
ence to  a  subject  which  had  a  great  and  a  commanding 
influence  over  the  Northern  mind.  Each  party,  on  that 
account,  feared  to  oppose  their  petitions,  lest  the  opposite 
party  should  take  advantage  of  the  one  who  might  do  so, 
by  favoring  them.  The  effect  was  that  both  united  in  in- 
sisting that  the  petitions  should  be  received,  and  that  Con- 
gress should  take  jurisdiction  over  the  subject.  To  justify 
their  course,  they  took  the  extraordinary  ground  that  Con- 
gress was  bound  to  receive  petitions  on  every  subject,  how- 
ever objectionable  they  might  be,  and  whether  they  had 
or  had  not  jurisdiction  over  the  subject.  These  views  pre- 
vailed in  the  House  of  Representatives,  and  partially  in  the 
Senate;  and  thus  the  party  succeeded  in  their  first  move- 
ments, in  gaining  what  they  proposed  —  a  position  in 


172  THE  BRIEF 

Congress,  from  which  agitation  could  be  extended  over 
the  whole  Union.  This  was  the  commencement  of  the 
agitation,  which  has  ever  since  continued,  and  which,  as  is 
now  acknowledged,  has  endangered  the  Union  itself. 

As  for  myself,  I  believed  at  that  early  period  if  the  party 
who  got  up  the  petitions  should  succeed  in  getting  Con- 
gress to  take  jurisdiction,  that  agitation  would  follow,  and 
that  it  would  in  the  end,  if  not  arrested,  destroy  the  Union. 
I  then  so  expressed  myself  in  debate,  and  called  upon  both 
parties  to  take  grounds  against  assuming  jurisdiction;  but 
in  vain.  Had  my  voice  been  heeded,  and  had  Congress 
refused  to  take  jurisdiction,  by  the  united  votes  of  all 
parties  the  agitation  which  followed  would  have  been  pre- 
vented, and  the  fanatical  zeal  that  gives  impulse  to  the 
agitation  and  which  has  brought  us  to  our  present  perilous 
condition,  would  have  become  extinguished,  from  the  want 
of  fuel  to  feed  the  flame.  That  was  the  time  for  the  North 
to  have  shown  her  devotion  to  the  Union;  but,  unfortu- 
nately, both  of  the  great  parties  of  that  section  were  so 
intent  on  obtaining  or  retaining  party  ascendency  that  all 
other  considerations  were  overlooked  or  forgotten. 

What  has  since  followed  is  but  the  natural  consequence. 
With  the  success  of  their  first  movement,  this  small  fanati- 
cal party  began  to  acquire  strength;  and,  with  that,  to  be- 
come an  object  of  courtship  to  both  the  great  parties.  The 
necessary  consequence  was  a  further  increase  of  power,  and 
a  gradual  tainting  of  the  opinions  of  both  of  the  other 
parties  with  their  doctrines,  until  the  infection  has  ex- 
tended over  both;  and  the  great  mass  of  the  population 
of  the  North,  who,  whatever  may  be  their  opinion  of  the 
original  Abolition  party,  which  still  preserves  its  distinc- 
tive organization,  hardly  ever  fail,  when  it  comes  to  acting, 
to  cooperate  in  carrying  out  their  measures.  With  the  in- 
crease of  their  influence,  they  extended  the  sphere  of  their 
action.   In  a  short  time  after  the  commencement  of  their 


SPEECH  ON  THE  SLAVERY  QUESTION        173 

first  movement,  they  had  acquired  sufficient  influence  to 
induce  the  legislatures  of  most  of  the  Northern  States  to 
pass  acts,  which,  in  effect,  abrogated  the  clause  of  the  Con- 
stitution that  provides  for  the  delivery  up  of  fugitive  slaves. 
Not  long  after,  petitions  followed  to  abolish  slavery  in  forts, 
magazines,  and  dock-yards,  and  all  other  places  where 
Congress  had  exclusive  power  of  legislation.  This  was  fol- 
lowed by  petitions  and  resolutions  of  legislatures  of  the 
Northern  States,  and  popular  meetings,  to  exclude  the 
Southern  States  from  all  Territories  acquired  or  to  be  ac- 
quired, and  to  prevent  the  admission  of  any  State  here- 
after into  the  Union,  which,  by  its  constitution,  does  not 
prohibit  slavery.  And  Congress  is  invoked  to  do  all  this 
expressly  with  the  view  to  the  final  abolition  of  slavery  in 
the  States.  That  has  been  avowed  to  be  the  ultimate  ob- 
ject from  the  beginning  of  the  agitation  until  the  present 
time;  and  yet  the  great  body  of  both  parties  of  the  North, 
with  the  full  knowledge  of  the  fact,  although  disavowing 
the  abolitionists,  have  cooperated  with  them  in  almost  all 
their  measures. 

Such  is  a  brief  history  of  the  agitation,  as  far  as  it  has 
yet  advanced.  Now,  I  ask,  Senators,  what  is  there  to  pre- 
vent its  further  progress,  until  it  fulfills  the  ultimate  end 
proposed,  unless  some  decisive  measure  should  be  adopted 
to  prevent  it?  Has  any  one  of  the  causes,  which  has  added 
to  its  increase,  from  its  original  small  and  contemptible 
beginning  until  it  has  attained  its  present  magnitude,  di- 
minished in  force?  Is  the  original  cause  of  the  movement  — 
that  slavery  is  a  sin,  and  ought  to  be  suppressed  —  weaker 
now  than  at  the  commencement?  Or  is  the  Abolition 
party  less  numerous  or  influential,  or  have  they  less  influ- 
ence with  or  control  over  the  two  great  parties  of  the  North 
in  elections?  Or  has  the  South  greater  means  of  influencing 
or  controlling  the  movements  of  this  Government  now  than 
it  had  when  the  agitation  commenced?  To  all  these  ques- 


174  THE  BRIEF 

tions  but  one  answer  can  be  given:  No  —  no  —  no.  The 
very  reverse  is  true.  Instead  of  being  weaker,  all  the  ele- 
ments in  favor  of  agitation  are  stronger  now  than  they  were 
in  1835,  when  it  first  commenced,  while  all  the  elements  of 
influence  on  the  part  of  the  South  are  weaker.  Unless  some- 
thing decisive  is  done,  I  again  ask,  what  is  to  stop  this 
agitation  before  the  great  and  final  object  at  which  it  aims 
—  the  abolition  of  slavery  in  the  States  —  is  consummated? 
Is  it,  then,  not  certain  that  if  something  is  not  done  to 
arrest  it,  the  South  will  be  forced  to  choose  between  aboli- 
tion and  secession?  Indeed,  as  events  are  now  moving,  it 
will  not  require  the  South  to  secede  in  order  to  dissolve  the 
Union.  Agitation  will  of  itself  effect  it,  of  which  its  past 
history  furnishes  abundant  proof  —  as  I  shall  next  proceed 
to  show. 

It  is  a  great  mistake  to  suppose  that  disunion  can  be 
effected  by  a  single  blow.  The  cords  which  bound  these 
States  together  in  one  common  Union  are  far  too  numer- 
ous and  powerful  for  that.  Disunion  must  be  the  work  of 
time.  It  is  only  through  a  long  process,  and  successively, 
that  the  cords  can  be  snapped,  until  the  whole  fabric  falls 
asunder.  Already  the  agitation  of  the  slavery  question 
has  snapped  some  of  the  most  important,  and  has  greatly 
weakened  all  the  others,  as  I  shall  proceed  to  show. 

The  cords  that  bind  the  States  together  are  not  only 
many,  but  various  in  character.  Some  are  spiritual  or  ec- 
clesiastical; some  political;  others  social.  Some  appertain 
to  the  benefit  conferred  by  the  Union,  and  others  to  the 
feeling  of  duty  and  obligation. 

The  strongest  of  those  of  a  spiritual  and  ecclesiastical 
nature  consisted  in  the  unity  of  the  great  religious  denomi- 
nations, all  of  which  originally  embraced  the  whole  Union. 
All  these  denominations,  with  the  exception,  perhaps,  of 
the  Catholics,  were  organized  very  much  upon  the  princi- 
ple of  our  political  institutions.    Beginning  with  smaller 


SPEECH  ON  THE  SLAVERY  QUESTION        175 

meetings,  corresponding  with  the  poHtical  divisions  of  the 
country,  their  organization  terminated  in  one  great  central 
assemblage,  corresponding  very  much  with  the  character  of 
Congress.  At  these  meetings  the  principal  clergymen  and 
lay  members  of  the  respective  denominations,  from  all 
parts  of  the  Union,  met  to  transact  business  relating  to  their 
common  concerns.  It  was  not  confined  to  what  appertained 
to  the  doctrines  and  discipline  of  the  respective  denomi- 
nations, but  extended  to  plans  for  disseminating  the  Bible 
—  establishing  missions,  distributing  tracts  —  and  of  es- 
tablishing presses  for  the  publication  of  tracts,  newspapers, 
and  periodicals,  with  a  view  of  diffusing  religious  informa- 
tion —  and  for  the  support  of  their  respective  doctrines  and 
creeds.  All  this  combined  contributed  greatly  to  strengthen 
the  bonds  of  the  Union.  The  ties  which  held  each  denomi- 
nation together  formed  a  strong  cord  to  hold  the  whole 
Union  together;  but,  powerful  as  they  were,  they  have  not 
been  able  to  resist  the  explosive  effect  of  slavery  agitation. 

The  first  of  these  cords  which  snapped  under  its  explosive 
force  was  that  of  the  powerful  Methodist  Episcopal  Church. 
The  numerous  and  strong  ties  which  held  it  together  are 
all  broken  and  its  unity  gone.  They  now  form  separate 
churches;  and,  instead  of  that  feeling  of  attachment  and 
devotion  to  the  interests  of  the  whole  church  which  was 
formerly  felt,  they  are  now  arrayed  into  two  hostile  bodies, 
engaged  in  litigation  about  what  was  formerly  their  common 
property. 

The  next  cord  that  snapped  was  that  of  the  Baptists  — 
one  of  the  largest  and  most  respectable  of  the  denomina- 
tions. That  of  the  Presbyterian  is  not  entirely  snapped, 
but  some  of  its  strands  have  given  way.  That  of  the  Epis- 
copal Church  is  the  only  one  of  the  four  great  Protestant 
denominations  which  remains  unbroken  and  entire. 

The  strongest  cord  of  a  political  character  consists  of  the 
many  and  powerful  ties  that  have  held  together  the  two 


176  THE  BRIEF 

great  parties  which  have,  with  some  modifications,  existed 
from  the  beginning  of  the  Government.  They  both  ex- 
tended to  every  portion  of  the  Union,  and  strongly  con- 
tributed to  hold  all  its  parts  together.  But  this  powerful 
cord  has  fared  no  better  than  the  spiritual.  It  resisted  for 
a  long  time  the  explosive  tendency  of  the  agitation,  but  has 
finally  snapped  under  its  force  —  if  not  entirely,  in  a  great 
measure.  Nor  is  there  one  of  the  remaining  cords  which  has 
not  been  greatly  weakened.  To  this  extent  the  Union  has 
already  been  destroyed  by  agitation,  in  the  only  way  it  can 
be,  by  sundering  and  weakening  the  cords  which  bind  it 
together. 

If  the  agitation  goes  on,  the  same  force,  acting  with  in- 
creased intensity,  as  has  been  shown,  will  finally  snap  every 
cord,  when  nothing  will  be  left  to  hold  the  States  together 
except  force.  But,  surely,  that  can,  with  no  propriety  of 
language,  be  called  a  Union,  when  the  only  means  by  which 
the  weaker  is  held  connected  with  the  stronger  portion  is 
force.  It  may,  indeed,  keep  them  connected;  but  the  con- 
nection will  partake  much  more  of  the  character  of  subju- 
gation on  the  part  of  the  weaker  to  the  stronger  than  the 
union  of  free,  independent,  and  sovereign  States,  in  one 
confederation,  as  they  stood  in  the  early  stages  of  the 
Government,  and  which  only  is  worthy  of  the  sacred  name 
of  Union. 

Having  now,  Senators,  explained  what  it  is  that  endan- 
gers the  Union,  and  traced  it  to  its  cause  and  explained  its 
nature  and  character,  the  question  again  recurs  —  How 
can  the  Union  be  saved?  To  this  I  answer,  there  is  but  one 
way  by  which  it  can  be  —  and  that  is  —  by  adopting  such 
measures  as  will  satisfy  the  States  belonging  to  the  South- 
ern section  that  they  can  remain  in  the  Union  consistently 
with  their  honor  and  their  safety.  There  is,  again,  only  one 
way  by  which  this  can  be  effected,  and  that  is  —  by  remov- 
ing the  causes  by  which  this  belief  has  been  produced.  Do 


SPEECH  ON  THE  SLAVERY  QUESTION        177 

this,  and  discontent  will  cease  —  harmony  and  kind  feelings 
between  the  sections  be  restored  —  and  every  apprehen- 
sion of  danger  to  the  Union  removed.  The  question,  then, 
is  —  How  can  this  be  done?  But,  before  I  undertake  to 
answer  this  question,  I  propose  to  show  by  what  the  Union 
cannot  be  saved. 

It  cannot,  then,  be  saved  by  eulogies  on  the  Union,  how- 
ever splendid  or  numerous.  The  cry  of  "Union,  Union  — 
the  glorious  Union!"  can  no  more  prevent  disunion  than 
the  cry  of  "  Health,  health  —  glorious  health ! "  on  the  part 
of  the  physician  can  save  a  patient  lying  dangerously  ill. 
So  long  as  the  Union,  instead  of  being  regarded  as  a  pro- 
tector, is  regarded  in  the  opposite  character  by  not  much 
less  than  a  majority  of  the  States,  it  will  be  in  vain  to 
attempt  to  conciliate  them  by  pronouncing  eulogies  on  it. 

Besides,  this  cry  of  Union  comes  commonly  from  those 
whom  we  cannot  believe  to  be  sincere.  It  usually  comes 
from  our  assailants.  But  we  cannot  believe  them  to  be  sin- 
cere; for,  if  they  loved  the  Union,  they  would  necessarily  be 
devoted  to  the  Constitution.  It  made  the  Union,  —  and 
to  destroy  the  Constitution  would  be  to  destroy  the  Union. 
But  the  only  reliable  and  certain  evidence  of  devotion  to 
the  Constitution  is  to  abstain,  on  the  one  hand,  from 
violating  it,  and  to  repel,  on  the  other,  all  attempts  to  vio- 
late it.  It  is  only  by  faithfully  performing  these  high  du- 
ties that  the  Constitution  can  be  preserved  and,  with  it, 
the  Union. 

But  how  stands  the  profession  of  devotion  to  the  Union 
by  our  assailants,  when  brought  to  this  test.^^  Have  they 
abstained  from  violating  the  Constitution?  Let  the  many 
acts  passed  by  the  Northern  States  to  set  aside  and  annul 
the  clause  of  the  Constitution  providing  for  the  delivery  up 
of  fugitive  slaves  answer.  I  cite  this,  not  that  it  is  the  only 
instance  (for  there  are  many  others),  but  because  the  viola- 
tion in  this  particular  is  too  notorious  and  palpable  to  be 


178  THE  BRIEF 

denied.  Again:  Have  they  stood  forth  faithfully  to  repel 
violations  of  the  Constitution?  Let  their  course  in  refer- 
ence to  the  agitation  of  the  slavery  question,  which  was 
commenced  and  has  been  carried  on  for  fifteen  years, 
avowedly  for  the  purpose  of  abolishing  slavery  in  the 
States,  —  an  object  all  acknowledged  to  be  unconstitu- 
tional, —  answer.  Let  them  show  a  single  instance  during 
this  long  period,  in  which  they  have  denounced  the  agita- 
tors or  their  attempts  to  effect  what  is  admitted  to  be  un- 
constitutional, or  a  single  measure  which  they  have  brought 
forward  for  that  purpose.  How  can  we,  with  all  these  facts 
before  us,  believe  that  they  are  sincere  in  their  profession 
of  devotion  to  the  Union,  or  avoid  believing  their  profession 
is  but  intended  to  increase  the  vigor  of  their  assaults  and  to 
weaken  the  force  of  our  resistance? 

Nor  can  we  regard  the  profession  of  devotion  to  the 
Union  on  the  part  of  those  who  are  not  our  assailants  as 
sincere,  when  they  pronounce  eulogies  upon  the  Union, 
evidently  with  the  intent  of  charging  us  with  disunion, 
without  uttering  one  word  of  denunciation  against  our 
assailants.  If  friends  of  the  Union,  their  course  should  be  to 
unite  with  us  in  repelling  these  assaults,  and  denouncing 
the  authors  as  enemies  of  the  Union.  Why  they  avoid  this 
and  pursue  the  course  they  do  it  is  for  them  to  explain. 

Nor  can  the  Union  be  saved  by  invoking  the  name  of  the 
illustrious  Southerner  whose  mortal  remains  repose  on  the 
western  bank  of  the  Potomac.  He  was  one  of  us  —  a  slave- 
holder and  a  planter.  We  have  studied  his  history,  and  find 
nothing  in  it  to  justify  submission  to  wrong.  On  the  con- 
trary, his  great  fame  rests  on  the  solid  foundation  that, 
while  he  was  careful  to  avoid  doing  wrong  to  others,  he  was 
prompt  and  decided  in  repelling  wrong.  I  trust  that,  in 
this  respect,  we  profited  by  his  example. 

Nor  can  we  find  anything  in  his  history  to  deter  us 
from  seceding  from  the  Union,  should  it  fail  to  fulfill  the 


SPEECH  ON  THE  SLAVERY  QUESTION       179 

objects  for  which  it  was  instituted,  by  being  permanently 
and  hopelessly  converted  into  the  means  of  oppressing  in- 
stead of  protecting  us.  On  the  contrary,  we  find  much  in 
his  example  to  encourage  us,  should  we  be  forced  to  the 
extremity  of  deciding  between  submission  and  disunion. 

There  existed  then,  as  well  as  now,  a  union  —  that  be- 
tween the  parent  country  and  her  then  colonies.  It  was  a 
union  that  had  much  to  endear  it  to  the  p>eople  of  the  col- 
onies. Under  its  protecting  and  superintending  care  the 
colonies  were  planted  and  grew  up  and  prospered,  through 
a  long  course  of  years,  until  they  became  populous  and 
wealthy.  Its  benefits  were  not  limited  to  them.  Their 
extensive  agricultural  and  other  productions  gave  birth  to 
a  flourishing  commerce,  which  richly  rewarded  the  parent 
country  for  the  trouble  and  expense  of  establishing  and 
protecting  them.  Washington  was  born  and  grew  up  to 
manhood  under  that  union.  He  acquired  his  early  distinc- 
tion in  its  service,  and  there  is  every  reason  to  beheve  that 
he  was  devotedly  attached  to  it.  But  his  devotion  was  a 
rational  one.  He  was  attached  to  it,  not  as  an  end,  but  as 
a  means  to  an  end.  When  it  failed  to  fulfill  its  end,  and, 
instead  of  affording  protection,  was  converted  into  the 
means  of  oppressing  the  colonies,  he  did  not  hesitate  to 
draw  his  sword  and  head  the  great  movement  by  which 
that  union  was  forever  severed,  and  the  independence  of 
these  States  established.  This  was  the  great  and  crowning 
glory  of  his  life,  which  has  spread  his  fame  over  the  whole 
globe,  and  will  transmit  it  to  the  latest  posterity. 

Nor  can  the  plan  proposed  by  the  distinguished  Senator 
from  Kentucky,  nor  that  of  the  Administration,  save  the 
Union.  I  shall  pass  by,  without  remark,  the  plan  proposed 
by  the  Senator,  and  proceed  directly  to  the  consideration 
of  that  of  the  Administration.  I,  however,  assure  the  dis- 
tinguished and  able  Senator,  that,  in  taking  this  course,  no 
disrespect  whatever  is  intended  to  him  or  his  plan.  I  have 


180  THE  BRIEF 

adopted  it  because  so  many  Senators  of  distinguished 
abilities,  who  were  present  when  he  delivered  his  speech  and 
explained  his  plan,  and  who  were  fully  capable  to  do  justice 
to  the  side  they  support,  have  replied  to  him. 

The  plan  of  the  Administration  cannot  save  the  Union, 
because  it  can  have  no  effect  whatever  towards  satisfying 
the  States  composing  the  Southern  section  of  the  Union. 
It  is,  in  fact,  but  a  modification  of  the  Wilmot  Proviso. 
It  proposes  to  effect  the  same  object  —  to  exclude  the 
South  from  all  territory  acquired  by  the  Mexican  treaty. 
It  is  well  known  that  the  South  is  united  against  the  Wilmot 
Proviso,  and  has  committed  itself  by  solemn  resolution  to 
resist,  should  it  be  adopted.  Its  opposition  is  not  to  the  name^ 
but  that  which  it  proposes  to  effect.  That,  the  Southern 
States  hold  to  be  unconstitutional,  unjust,  inconsistent 
with  their  equality  as  members  of  the  common  Union,  and 
calculated  to  destroy  irretrievably  the  equilibrium  between 
the  two  sections.  These  objections  equally  apply  to  what, 
for  brevity,  I  will  call  the  Executive  Proviso.  There  is 
no  difference  between  it  and  the  Wilmot,  except  in  the 
mode  of  effecting  the  object;  and  in  that  respect,  I  must 
say,  that  the  latter  is  much  the  least  objectionable.  It  goes 
to  its  object  openly,  boldly,  and  distinctly.  It  claims  for 
Congress  unlimited  power  over  the  Territories,  and  pro- 
poses to  exert  it  over  the  Territories  acquired  from  Mexico 
by  a  positive  prohibition  of  slavery.  Not  so  the  Executive 
Proviso.  It  takes  an  indirect  course,  and,  in  order  to  elude 
the  Wilmot  Proviso  and  thereby  avoid  encountering  the 
united  and  determined  resistance  of  the  South,  denies,  by 
implication,  the  authority  of  Congress  to  legislate  for  the 
Territories,  and  claims  the  right  as  belonging  exclusively 
to  the  inhabitants  of  the  Territories.  But  to  effect  the 
object  of  excluding  the  South,  it  takes  care,  in  the  mean 
time,  to  let  in  emigrants  freely  from  the  Northern  States 
and  all  other  quarters,  except  from  the  South,  which  it 


SPEECH  ON  THE  SLAVERY  QUESTION        181 

takes  special  care  to  exclude  by  holding  up  to  them  the 
danger  of  having  their  slaves  liberated  by  the  Mexican 
laws.  The  necessary  consequence  is  to  exclude  the  South 
from  the  Territory,  just  as  effectually  as  would  the  Wilmot 
Proviso.  The  only  difference  in  this  respect  is  that  what 
one  proposes  to  effect  directly  and  openly  the  other  pro- 
poses to  effect  indirectly  and  covertly. 

But  the  Executive  Proviso  is  more  objectionable  than  the 
Wilmot,  in  another  and  more  important  particular.  The 
latter,  to  effect  its  object,  inflicts  a  dangerous  wound  upon 
the  Constitution  by  depriving  the  Southern  States  as  joint 
partners  and  owners  of  the  Territories,  of  their  rights  in 
them;  but  it  inflicts  no  greater  wound  than  is  necessary  to 
effect  its  object.  The  former,  on  the  contrary,  while  it  in- 
flicts the  same  wound,  inflicts  others  equally  great,  and,  if 
possible,  greater,  as  I  shall  next  proceed  to  explain. 

In  claiming  the  right  for  the  inhabitants,  instead  of  Con- 
gress, to  legislate  for  the  Territories,  the  Executive  Proviso 
assumes  that  the  sovereignty  over  the  Territories  is  vested 
in  the  former:  or,  to  express  it  in  the  language  used  in 
a  resolution  offered  by  one  of  the  Senators  from  Texas 
(General  Houston,  now  absent),  they  have  "the  same  in- 
herent right  of  self-government  as  the  people  in  the  States." 
The  assumption  is  utterly  unfounded,  unconstitutional, 
without  example,  and  contrary  to  the  entire  practice  of  the 
Government  from  its  commencement  to  the  present  time, 
as  I  shall  proceed  to  show. 

The  recent  movement  of  individuals  in  California  to 
form  a  constitution  and  a  State  Government,  and  to  ap- 
point Senators  and  Representatives,  is  the  first  fruit  of  this 
monstrous  assumption.  If  the  individuals  who  made  this 
movement  had  gone  into  California  as  adventurers,  and  if, 
as  such,  they  had  conquered  the  territory  and  established 
their  independence,  the  sovereignty  of  the  country  would 
have  been  vested  in  them,  as  a  separate  and  independent 


182  THE  BRIEF 

community.  In  that  case,  they  would  have  had  the  right 
to  form  a  constitution,  and  to  establish  a  government  for 
themselves;  and  if,  afterwards,  they  thought  proper  to 
apply  to  Congress  for  admission  into  the  Union  as  a  sov- 
ereign and  independent  State,  all  this  would  have  been 
regular,  and  according  to  established  principles.  But  such 
was  not  the  case.  It  was  the  United  States  who  conquered 
California  and  finally  acquired  it  by  treaty.  The  sov- 
ereignty, of  course,  is  vested  in  them,  and  not  in  the  individ- 
uals who  have  attempted  to  form  a  constitution  and  a  State 
without  their  consent.  All  this  is  clear,  beyond  controversy, 
unless  it  can  be  shown  that  they  have  since  lost  or  been 
divested  of  their  sovereignty. . 

Nor  is  it  less  clear  that  the  power  of  legislating  over  the 
acquired  territory  is  vested  in  Congress,  and  not,  as  is 
assumed,  in  the  inhabitants  of  the  Territories.  None  can 
deny  that  the  Government  of  the  United  States  has  the 
power  to  acquire  territories,  either  by  war  or  treaty;  but, 
if  the  power  to  acquire  exists,  it  belongs  to  Congress  to 
carry  it  into  execution.  On  this  point  there  can  be  no 
doubt,  for  the  Constitution  expressly  provides  that  Con- 
gress shall  have  power  "to  make  all  laws  which  shall  be 
necessary  and  proper  to  carry  into  execution  the  foregoing 
powers"  (those  vested  in  Congress)  "and  all  other  powers 
vested  by  this  Constitution  in  the  Government  of  the  United 
States,  or  in  any  department  or  officer  thereof."  It  matters 
not,  then,  where  the  power  is  vested;  for,  if  vested  at  all  in 
the  Government  of  the  United  States  or  any  of  its  depart- 
ments or  officers,  the  power  of  carrying  it  into  execution  is 
clearly  vested  in  Congress.  But  this  important  provision, 
while  it  gives  to  Congress  the  power  of  legislating  over 
Territories,  imposes  important  limitations  on  its  exercise, 
by  restricting  Congress  to  passing  laws  necessary  and 
proper  for  carrying  the  power  into  execution.  The  pro- 
hibition extends  not  only  to  all  laws  not  suitable  or  appro- 


SPEECH   ON   THE   SLAVERY   QUESTION       183 

priate  to  the  object  of  the  power,  but  also  to  all  that  are 
unjust,  unequal,  or  unfair,  —  for  all  such  laws  would  be 
unnecessary  and  improp>er,  and,  therefore,  unconstitutional. 

Having  now  established,  beyond  controversy,  that  the 
sovereignty  over  the  Territories  is  vested  in  the  United 
States,  —  that  is,  in  the  several  States  composing  the 
Union,  —  and  that  the  power  of  legislating  over  them  is 
expressly  vested  in  Congress,  it  follows  that  the  individuals 
in  California  who  have  undertaken  to  form  a  constitution 
and  a  State,  and  to  exercise  the  power  of  legislating  without 
the  consent  of  Congress,  have  usurped  the  sovereignty  of 
the  State  and  the  authority  of  Congress,  and  have  acted  in 
open  defiance  of  both.  In  other  words,  what  they  have  done 
is  revolutionary  and  rebellious  in  its  character,  anarchical 
in  its  tendency,  and  calculated  to  lead  to  the  most  danger- 
ous consequences.  Had  they  acted  from  premeditation  and 
design,  it  would  have  been,  in  fact,  actual  rebellion;  but 
such  is  not  the  case.  The  blame  lies  much  less  upon  them 
than  upon  those  who  have  induced  them  to  take  a  course  so 
unconstitutional  and  dangerous.  They  have  been  led  into 
it  by  language  held  here  and  the  course  pursued  by  the 
Executive  branch  of  the  Government. 

I  have  not  seen  the  answer  of  the  Executive  to  the  calls 
made  by  the  two  Houses  of  Congress  for  information  as  to 
the  course  which  it  took,  or  the  part  which  it  acted,  in  ref- 
erence to  what  was  done  in  California.  I  understand  the 
answers  have  not  yet  been  printed.  But  there  is  enough 
known  to  justify  the  assertion  that  those  who  profess  to 
represent  and  act  under  the  authority  of  the  Executive  have 
advised,  aided,  and  encouraged  the  movement,  which  ter- 
minated in  forming  what  they  call  a  constitution  and  a 
State.  General  Riley,  who  professed  to  act  as  civil  Gov- 
ernor, called  the  convention  —  determined  on  the  number 
and  distribution  of  the  delegates  —  appointed  the  time  and 
place  of  its  meeting  —  was  present  during  the  session  — 


184  THE  BRIEF 

and  gave  its  proceedings  his  approbation  and  sanction.  If 
he  acted  without  authority,  he  ought  to  have  been  tried,  or, 
at  least,  reprimanded,  and  his  course  disavowed.  Neither 
having  been  done,  the  presumption  is  that  his  course  has 
been  approved.  This,  of  itself,  is  suflBcient  to  identify  the 
Executive  with  his  acts,  and  to  make  it  responsible  for 
them.  I  touch  not  the  question  whether  General  Riley  was 
appointed  or  received  the  instructions  under  which  he  pro- 
fessed to  act  from  the  present  Executive  or  its  predecessor. 
If  from  the  former,  it  would  implicate  the  preceding  as  well 
as  the  present  Administration.  If  not,  the  responsibility 
rests  exclusively  on  the  present. 

It  is  manifest  from  this  statement  that  the  Executive 
Department  has  undertaken  to  perform  acts  preparatory 
to  the  meeting  of  the  individuals  to  form  their  so-called 
constitution  and  government,  which  appertain  exclusively 
to  Congress.  Indeed,  they  are  identical,  in  many  respects, 
with  the  provisions  adopted  by  Congress  when  it  gives  per- 
mission to  a  Territory  to  form  a  constitution  and  govern- 
ment in  order  to  be  admitted  as  a  State  into  the  Union. 

Having  now  shown  that  the  assumption  upon  which  the 
Executive  and  the  individuals  in  California  acted  through- 
out this  whole  affair  is  unfounded,  unconstitutional,  and 
dangerous,  it  remains  to  make  a  few  remarks,  in  order  to 
show  that  what  has  been  done  is  contrary  to  the  entire 
practice  of  the  Government,  from  the  commencement  to 
the  present  time. 

From  its  commencement  to  the  time  that  Michigan  was 
admitted  the  practice  was  uniform.  Territorial  Govern- 
ments were  first  organized  by  Congress.  The  Government 
of  the  United  States  appointed  the  governors,  judges,  secre- 
taries, marshals,  and  other  officers;  and  the  inhabitants  of 
the  Territory  were  represented  by  legislative  bodies,  whose 
acts  were  subject  to  the  revision  of  Congress.  This  state 
of  things  continued  until  the  Government  of  a  Territory 


SPEECH  ON  THE   SLAVERY  QUESTION      185 

applied  to  Congress  to  permit  its  inhabitants  to  form  a 
constitution  and  government,  preparatory  to  admission 
into  the  Union.  The  act  preHminary  to  giving  permission 
was  to  ascertain  whether  the  inhabitants  were  suflficiently 
numerous  to  authorize  them  to  be  formed  into  a  State. 
This  was  done  by  taking  a  census.  That  being  done  and 
the  number  proving  sufficient,  permission  was  granted. 
The  act  granting  it  fixed  all  the  preliminaries  —  the  time 
and  place  of  holding  the  convention,  the  qualification  of 
the  voters,  establishment  of  its  boundaries,  and  all  other 
measures  necessary  to  be  settled  previous  to  admission. 
The  act  giving  permission  necessarily  withdraws  the  sov- 
ereignty of  the  United  States,  and  leaves  the  inhabitants 
of  the  incipient  State  as  free  to  form  their  constitution  and 
government  as  were  the  original  States  of  the  Union  after 
they  had  declared  their  independence.  At  this  stage  the 
inhabitants  of  the  Territory  became,  for  the  first  time,  a 
people,  in  legal  and  constitutional  language.  Prior  to  this, 
they  were,  by  the  old  acts  of  Congress,  called  inhabitants, 
and  not  people.  All  this  is  perfectly  consistent  with  the 
sovereignty  of  the  United  States,  with  the  powers  of  Con- 
gress, and  with  the  right  of  a  people  to  self-government. 

Michigan  was  the  first  case  in  which  there  was  any  de- 
parture from  the  uniform  rule  of  acting.  Hers  was  a  very 
slight  departure  from  the  established  usage.  The  Ordinance 
of  1787  secured  to  her  the  right  of  becoming  a  State  when 
she  should  have  sixty  thousand  inhabitants.  Owing  to  some 
neglect,  Congress  delayed  taking  the  census.  In  the  mean 
time  her  population  increased  until  it  clearly  exceeded  more 
than  twice  the  number  which  entitled  her  to  admission.  At 
this  stage  she  formed  a  constitution  and  government,  with- 
out a  census  being  taken  by  the  United  States,  and  Con- 
gress waived  the  omission,  as  there  was  no  doubt  she  had 
more  than  a  sufficient  number  to  entitle  her  to  admission. 
She  was  not  admitted  at  the  first  session  she  applied,  owing 


186  THE  BRIEF 

to  some  difficulty  respecting  the  boundary  between  her 
and  Ohio.  The  great  irregularity  as  to  her  admission  took 
place  at  the  next  session  —  but  on  a  point  which  can  have 
no  possible  connection  with  the  case  of  California. 

Their  regularities  in  all  other  cases  that  have  since  oc- 
curred are  of  similar  nature.  In  all,  there  existed  Terri- 
torial Governments  established  by  Congress,  with  officers 
appointed  by  the  United  States.  In  all,  the  Territorial 
Government  took  the  lead  in  calling  conventions  and  fix- 
ing the  preliminaries  preparatory  to  the  formation  of  a 
constitution  and  admission  into  the  Union.  They  all  rec- 
ognized the  sovereignty  of  the  United  States  and  the 
authority  of  Congress  over  the  Territories;  and  wherever 
there  was  any  departiu-e  from  established  usage,  it  was  done 
on  the  presumed  consent  of  Congress,  and  not  in  defiance 
of  its  authority  or  the  sovereignty  of  the  United  States  over 
the  Territories.  In  this  respect  California  stands  alone, 
without  usage  or  a  single  example  to  cover  her  case. 

It  belongs  now.  Senators,  to  you  to  decide  what  part  you 
will  act  in  reference  to  this  unprecedented  transaction.  The 
Executive  has  laid  the  paper  purporting  to  be  the  constitu- 
tion of  California  before  you,  and  asks  you  to  admit  her 
into  the  Union  as  a  State;  and  the  question  is.  Will  you  or 
will  you  not  admit  her?  It  is  a  grave  question,  and  there 
rests  upon  you  a  heavy  responsibility.  Much,  very  much, 
will  depend  upon  your  decision.  If  you  admit  her,  you 
endorse  and  give  your  sanction  to  ail  that  has  been  done. 
Are  you  prepared  to  do  so?  Are  you  prepared  to  surrender 
your  power  of  legislation  for  the  Territories  —  a  power 
expressly  vested  in  Congress  by  the  Constitution,  as  has 
been  fully  established?  Can  you,  consistently  with  your 
oath  to  support  the  Constitution,  surrender  the  power? 
Are  you  prepared  to  admit  that  the  inhabitants  of  the 
Territories  possess  the  sovereignty  over  them,  and  that  any 
number,  more  or  less,  may  claim  any  extent  of  territory 


SPEECH  ON  THE   SLAVERY  QUESTION       187 

they  please;  may  form  a  constitution  and  government,  and 
erect  it  into  a  State,  without  asking  your  permission?  Are 
you  prepared  to  surrender  the  sovereignty  of  the  United 
States  over  whatever  territory  may  be  hereafter  acquired 
to  the  first  adventurers  who  may  rush  into  it?  Are  you 
prepared  to  surrender  virtually  to  the  Executive  Depart- 
ment all  the  powers  which  you  have  heretofore  exercised 
over  the  Territories?  If  not,  how  can  you,  consistently  with 
your  duty  and  your  oaths  to  support  the  Constitution,  give 
your  assent  to  the  admission  of  California  as  a  State,  under 
a  pretended  constitution  and  government?  Again,  can  you 
believe  that  the  project  of  a  constitution  which  they  have 
adopted  has  the  least  validity?  Can  you  believe  that  there 
is  such  a  State  in  reality  as  the  State  of  California?  No; 
there  is  no  such  State.  It  has  no  legal  or  constitutional 
existence.  It  has  no  vahdity,  and  can  have  none,  without 
your  sanction.  How,  then,  can  you  admit  it  as  a  State y  when, 
according  to  the  provision  of  the  Constitution,  your  power 
is  limited  to  admitting  new  States  9  To  be  admitted,  it  must 
be  a  State  —  and  an  existing  State,  independent  of  your 
sanction,  before  you  can  admit  it.  When  you  give  your 
permission  to  the  inhabitants  of  a  Territory  to  form  a  con- 
stitution and  a  State,  the  constitution  and  State  they  form 
derive  their  authority  from  the  people,  and  not  from  you. 
The  State,  before  it  is  admitted,  is  actually  a  State,  and 
does  not  become  so  by  the  act  of  admission,  as  would  be  the 
case  with  California,  should  you  admit  her  contrary  to  the 
constitutional  provision  and  established  usage  heretofore. 
The  Senators  on  the  other  side  of  the  Chamber  must 
permit  me  to  make  a  few  remarks  in  this  connection  par- 
ticularly applicable  to  them  —  with  the  exception  of  a  few 
Senators  from  the  South,  sitting  on  the  other  side  of  the 
Chamber.  When  the  Oregon  question  was  before  this  body, 
not  two  years  since,  you  took  (if  I  mistake  not)  universally 
the  ground  that  Congress  had  the  sole  and  absolute  power 


188  THE  BRIEF 

of  legislating  for  the  Territories.  How,  then,  can  you  now, 
after  the  short  interval  which  has  elapsed,  abandon  the 
ground  which  you  took,  and  thereby  virtually  admit  that 
the  power  of  legislating,  instead  of  being  in  Congress,  is  in 
the  inhabitants  of  the  Territories?  How  can  you  justify 
and  sanction  by  your  votes  the  acts  of  the  Executive,  which 
are  in  direct  derogation  of  what  you  then  contended  for? 
But,  to  approach  still  nearer  to  the  present  time,  how  can 
you,  after  condemning,  little  more  than  a  year  since,  the 
grounds  taken  by  the  party  which  you  defeated  at  the  last 
election,  wheel  round  and  support  by  your  votes  the 
grounds  which,  as  explained  recently  on  this  floor  by  the 
candidate  of  the  party  in  the  last  election,  are  identical 
with  those  on  which  the  Executive  has  acted  in  reference  to 
California?  What  are  we  to  understand  by  all  this?  Must 
we  conclude  that  there  is  no  sincerity,  no  faith  in  the  acts 
and  declarations  of  public  men,  and  that  all  is  mere  acting 
or  hollow  profession?  Or  are  we  to  conclude  that  the  exclu- 
sion of  the  South  from  the  territory  acquired  from  Mexico 
is  an  object  of  so  paramount  a  character  in  your  estimation, 
that  right,  justice.  Constitution,  and  consistency  must  all 
yield  when  they  stand  in  the  way  of  our  exclusion? 

But,  it  may  be  asked,  what  is  to  be  done  with  California? 
Should  she  not  be  admitted?  I  answer,  remand  her  back 
to  the  Territorial  condition,  as  was  done  in  the  case  of 
Tennessee,  in  the  early  stage  of  the  Government.  Congress, 
in  her  case,  had  established  a  Territorial  Government  in 
the  usual  form^  with  a  governor,  judge,  and  other  officers 
appointed  by  the  United  States.  She  was  entitled,  under 
the  deed  of  cession,  to  be  admitted  into  the  Union  as  a 
State,  as  soon  as  she  had  sixty  thousand  inhabitants.  The 
Territorial  Government,  beheving  it  had  that  number,  took 
a  census,  by  which  it  appeared  it  exceeded  it.  She  then 
formed  a  constitution,  and  applied  for  admission.  Con- 
gress refused  to  admit  her,  on  the  ground  that  the  census 


SPEECH  ON  THE   SLAVERY  QUESTION      189 

should  be  taken  by  the  United  States,  and  that  Congress 
had  not  determined  v^hether  the  Territory  should  be  formed 
into  one  or  two  States,  as  it  was  authorized  to  do  under  the 
cession.  She  returned  quietly  to  her  territorial  condition. 
An  act  was  passed  to  take  a  census  by  the  United  States, 
containing  a  provision  that  the  Territory  should  form  one 
State.  All  afterwards  was  regularly  conducted,  and  the 
Territory  admitted  as  a  State  in  due  form.  The  irregulari- 
ties in  the  case  of  California  are  immeasurably  greater,  and 
offer  much  stronger  reasons  for  pursuing  the  same  course. 
But,  it  may  be  said,  California  may  not  submit.  That  is 
not  probable;  but  if  she  should  not,  when  she  refuses,  it 
will  then  be  time  for  us  to  decide  what  is  to  be  done. 

Having  now  shown  what  cannot  save  the  Union,  I  return 
to  the  question  with  which  I  commenced,  How  can  the 
Union  be  saved?  There  is  but  one  way  by  which  it  can 
with  any  certainty;  and  that  is,  by  a  full  and  final  settle- 
ment, on  the  principles  of  justice,  of  all  the  questions  at 
issue  between  the  two  sections.  The  South  asks  for  justice, 
simple  justice,  and  less  she  ought  not  to  take.  She  has  no 
compromise  to  offer  but  the  Constitution;  and  no  conces- 
sion or  surrender  to  make.  She  has  aheady  surrendered  so 
much  that  she  has  little  left  to  siu'render.  Such  a  settle- 
ment would  go  to  the  root  of  the  evil,  and  remove  all 
cause  of  discontent;  by  satisfying  the  South,  she  could 
remain  honorably  and  safely  in  the  Union,  and  thereby 
restore  the  harmony  and  fraternal  feelings  between  the 
sections,  which  existed  anterior  to  the  Missouri  agitation. 
Nothing  else  can,  with  any  certainty,  finally  and  forever 
settle  the  questions  at  issue,  terminate  agitation,  and  save 
the  Union. 

But  can  this  be  done?  Yes,  easily;  not  by  the  weaker 
party,  for  it  can  of  itself  do  nothing,  —  not  even  protect 
itself,  —  but  by  the  stronger.  The  North  has  only  to  will 
it  to  accomplish  it  —  to  do  justice  by  conceding  to  the 


190  THE  BRIEF 

South  an  equal  right  in  the  acquired  territory,  and  to  do 
her  duty  by  causing  the  stipulations  relative  to  fugitive 
slaves  to  be  faithfully  fulfilled  —  to  cease  the  agitation  of 
the  slave  question,  and  to  provide  for  the  insertion  of  a 
provision  in  the  Constitution,  by  an  amendment,  which  will 
restore  to  the  South,  in  substance,  the  power  she  possessed 
of  protecting  herself,  before  the  equilibrium  between  the 
sections  was  destroyed  by  the  action  of  this  Government. 
There  will  be  no  difficulty  in  devising  such  a  provision  — 
one  that  will  protect  the  South,  and  which,  at  the  same 
time,  will  improve  and  strengthen  the  Government,  instead 
of  impairing  and  weakening  it. 

But  will  the  North  agree  to  this?  It  is  for  her  to  answer 
the  question.  But,  I  will  say,  she  cannot  refuse,  if  she  has 
half  the  love  of  the  Union  which  she  professes  to  have,  or 
without  justly  exposing  herself  to  the  charge  that  her  love 
of  power  and  aggrandizement  is  far  greater  than  her  love  of 
the  Union.  At  all  events,  the  responsibility  of  saving  the 
Union  rests  on  the  North,  and  not  on  the  South.  The 
South  cannot  save  it  by  any  act  of  hers,  and  the  North 
may  save  it  without  any  sacrifice  whatever,  unless  to  do 
justice  and  to  perform  her  duties  under  the  Constitution 
should  be  regarded  by  her  as  a  sacrifice. 

It  is  time.  Senators,  that  there  should  be  an  open  and 
manly  avowal  on  all  sides  as  to  what  is  intended  to  be  done. 
If  the  question  is  not  now  settled,  it  is  uncertain  whether 
it  ever  can  hereafter  be;  and  we,  as  the  representatives  of 
the  States  of  this  Union,  regarded  as  governments,  should 
come  to  a  distinct  understanding  as  to  our  respective  views, 
in  order  to  ascertaift  whether  the  great  questions  at  issue 
can  be  settled  or  not.  If  you,  who  represent  the  stronger 
portion,  cannot  agree  to  settle  them  on  the  broad  principle 
of  justice  and  duty,  say  so;  and  let  the  States  we  both 
represent  agree  to  separate  and  part  in  peace.  If  you  are 
unwilling  we  should  part  in  peace,  tell  us  so,  and  we  shall 


SPEECH  ON  THE   SLAVERY   QUESTION       191 

know  what  to  do  when  you  reduce  the  question  to  sub- 
mission or  resistance.  If  you  remain  silent,  you  will  compel 
us  to  infer  by  your  acts  what  you  intend.  In  that  case, 
California  will  become  the  test  question.  If  you  admit  her, 
under  all  the  difficulties  that  oppose  her  admission,  you 
compel  us  to  infer  that  you  intend  to  exclude  us  from  the 
whole  of  the  acquired  territories,  with  the  intention  of 
destroying  irretrievably  the  equilibrium  between  the  two 
sections.  We  would  be  blind  not  to  perceive  in  that  case 
that  your  real  objects  are  power  and  aggrandizement,  and 
infatuated  not  to  act  accordingly. 

I  have  now.  Senators,  done  my  duty  in  expressing  my 
opinions  fully,  freely,  and  candidly,  on  this  solemn  occa- 
sion. In  doing  so,  I  have  been  governed  by  the  motives 
which  have  governed  me  in  all  the  stages  of  the  agitation 
of  the  slavery  question  since  its  commencement.  I  have 
exerted  myself,  during  the  whole  period,  to  arrest  it,  with 
the  intention  of  saving  the  Union,  if  it  could  be  done;  and, 
if  it  could  not,  to  save  the  section  where  it  has  pleased 
Providence  to  cast  my  lot,  and  which  I  sincerely  believe  has 
justice  and  the  Constitution  on  its  side.  Having  faithfully 
done  my  duty  to  the  best  of  my  ability,  both  to  the  Union 
and  my  section,  throughout  this  agitation,  I  shall  have  the 
consolation,  let  what  will  come,  that  I  am  free  from  all 
responsibility.. 


192  THE  BRIEF 


5.  THE   SPEECH  OF   BENJAMIN   R.   CURTIS  1 

Before  the  Senate  of  the  United  States,  in  defense  of  President 

Andrew  Johnson,  accused  of  High  Treason.  Delivered 

May  9, 1868 

On  February  22,  1868,  the  House  of  Representatives  recom- 
mended that  Andrew  Johnson,  President  of  the  United  States, 
be  impeached  "of  high  crimes  and  misdemeanors  in  office,'*  and, 
three  days  later,  Thaddeus  Stevens  and  John  A.  Bingham 
appeared  before  the  Senate  to  announce  the  vote  of  the  House 
and  to  give  notice  that  in  due  time  that  body  would  present  be- 
fore the  Senate  "the  particular  articles  of  impeachment  against 
the  President  and  make  good  the  same." 

The  principal  charge  brought  against  President  Johnson  was 
to  the  effect  that  he  had  violated  the  Constitution  and  had  over- 
stepped the  Tenure-of -Office  Act  in  removing  Edwin  M.  Stanton 
from  his  position  as  Secretary  of  War,  to  which  he  had  been 
appointed  by  President  Lincoln.  It  was  also  contended  that  the 
character  of  many  of  President  Johnson's  public  speeches  con- 
stituted a  "high  misdemeanor  in  office." 

The  House  of  Representatives  appointed  as  the  managers  of 
the  prosecution  John  A.  Bingham,  George  S.  Boutwell,  James 
S.  Wilson,  Benjamin  F.  Butler,  Thomas  Williams,  Thaddeus 
Stevens,  and  John  A.  Logan.  The  President  selected  as  his 
counsel  for  the  defense  Henry  Stanbery,  Benjamin  R.  Curtis, 
Thomas  A.  R.  Nelson,  William  M.  Evarts,  and  William  S. 
Groesbeck. 

The  case  was  presented  for  trial  March  5,  before  the  Senate 
"sitting  on  the  trial  of  impeachment,"  the  Honorable  Salmon  P. 
Chase,  Chief  Justice  of  the  Supreme  Court,  acting  as  presiding 
officer.  The  trial  proper  began  March  30. 

The  speech  of  Mr.  Curtis,  which  follows,  was  delivered  on 
April  9,  and  opened  the  President's  defense.  Regarding  Mr. 
Curtis,  James  G.  Blaine,  in  Twenty  Years  of  Congress,  writes: 

Benjamin  R.  Curtis,  when  he  appeared  in  the  Impeachment  case, 
was  in  the  fullness  of  his  powers,  in  the  fifty-ninth  year  of  his  age.  At 
forty-one  he  had  been  appointed  to  the  Supreme  Bench  of  the  United 
States  at  the  earnest  request  and  warm  recommendation  of  Mr.  Webster, 
then  Secretary  of  State.  Mr.  Webster  is  reported  to  have  said  that  he  had 

1  From  the  Congressional  Globe. 


DEFENSE  OF  PRESIDENT  JOHNSON  193 

placed  the  people  of  Massachusetts  under  lasting  obligation  to  him  by 
inducing  Governor  Lincoln,  in  1830,  to  appoint  Lemuel  Shaw  Chief 
Justice  of  the  Supreme  Court  of  the  State,  a  position  which  he  honored 
and  adorned  for  thirty  years.  Mr.  Webster  thought  he  was  doing  an  equal 
service  to  the  people  of  the  entire  Union  when  he  induced  the  President 
to  call  Mr.  Curtis  to  the  Supreme  Bench.  But  judicial  life  had  not  proved 
altogether  agreeable  to  Judge  Curtis,  and,  after  a  remarkable  and  brilliant 
career  of  six  years,  he  resigned,  in  October,  1857,  and  returned  to  the 
practice  of  the  law  —  his  learning  increased,  his  mind  enriched  and 
broadened  by  the  grave  national  questions  engaging  the  attention  of  the 
court  during  the  period  of  his  service.  Thenceforward  during  his  life  no 
man  at  the  bar  of  the  United  States  held  higher  rank.  He  was  entirely 
devoted  to  his  profession.  He  had  taken  no  interest  in  party  strife,  and, 
with  the  exception  of  serving  two  sessions  in  the  Massachusetts  Legisla- 
ture, he  had  never  held  a  political  office.  In  arguing  a  case  his  style  was 
peculiarly  felicitous  —  simple,  direct,  clear.  In  the  full  maturity  of  his 
powers  and  with  all  the  earnestness  of  his  nature  he  engaged  in  the 
President's  defense;  and  he  brought  to  it  a  wealth  of  learning,  a  dignity 
of  character,  an  impressiveness  of  speech,  which  attracted  the  admiration 
and  respect  of  all  who  had  the  good  fortune  to  hear  his  great  argument. 

On  May  11  the  case  was  completed,  and  the  Senate  proceeded 
to  vote  on  the  eleventh  and  last  article  of  the  impeachment. 
Fifty-four  votes  were  cast,  and  a  two-thirds  majority,  thirty-six, 
was  necessary  for  conviction.  Thirty-five  senators  voted  *' guilty, " 
and  nineteen  "  not  guilty."  The  Senate  then  adjourned  to  May  26, 
when  it  voted  upon  the  second  and  third  articles  respectively, 
with  precisely  the  same  result  as  upon  the  first  article  considered. 
As  it  appeared  hopeless  to  bring  about  a  change  in  the  ballot, 
each  Senator  holding  to  his  verdict,  —  although  it  has  been 
charged  that  great  influence  was  brought  to  bear  in  certain  cases 
to  effect  an  alteration  in  the  vote,  —  the  remaining  articles  were 
abandoned,  and  the  Senate  adjourned,  after  what  ranks  as  one  of 
the  most  important  trials  in  the  history  of  our  National  Govern- 
ment. 

Mr.  Chief  Justice,  I  am  here  to  speak  to  the  Senate  of 
the  United  States  sitting  in  its  judicial  capacity  as  a  court 
of  impeachment,  presided  over  by  the  Chief  Justice  of  the 
United  States,  for  the  trial  of  the  President  of  the  United 
States.  This  statement  sufficiently  characterizes  what  I 
have  to  say.  Here  party  spirit,  political  schemes,  foregone 
conclusions,  outrageous  biases  can  have  no  fit  operation. 


194  THE  BRIEF 

The  Constitution  requires  that  here  Should  be  a  "trial," 
and  as  in  that  trial  the  oath  which  each  one  of  you  has 
taken  is  to  administer  "impartial  justice  according  to  the 
Constitution  and  the  laws,"  the  only  appeal  which  I  can 
make  in  behaK  of  the  President  is  an  appeal  to  the  con- 
science and  the  reason  of  each  judge  who  sits  before  me. 
Upon  the  law  and  the  facts,  upon  the  judicial  merits  of  the 
case,  upon  the  duties  incumbent  on  that  high  oflficer  by 
virtue  of  his  office,  and  his  honest  endeavor  to  discharge 
those  duties,  the  President  rests  his  defense.  And  I  pray 
each  one  of  you  to  listen  to  me  with  that  patience  which 
belongs  to  a  judge  for  his  own  sake,  which  I  cannot  expect 
to  command  by.  any  efforts  of  mine,  while  I  open  to  you 
what  that  defense  is. 

The  honorable  Managers,  through  their  associate  who 
has  addressed  you  [Mr.  Butler],  has  informed  you  that  this 
is  not  a  court,  and  that,  whatever  may  be  the  character  of 
this  body,  it  is  bound  by  no  law.  Upon  those  subjects 
I  shall  have  something  hereafter  to  say.  The  honorable 
Manager  did  not  tell  you,  in  terms  at  least,  that  here  are 
no  articles  before  you,  because  a  statement  of  that  fact 
would  be  in  substance  to  say  that  here  are  no  honorable 
Managers  before  you,  inasmuch  as  the  only  authority  with 
which  the  honorable  Managers  are  clothed  by  the  House 
of  Representatives  is  an  authority  to  present  here  at  your 
bar  certain  articles,  and,  within  their  limits,  conduct  this 
prosecution;  and,  therefore,  I  shall  make  no  apology, 
Senators,  for  asking  your  close  attention  to  these  articles, 
one  after  the  other,  in  manner  and  form  as  they  are  here 
presented,  to  ascertain,  in  the  first  place,  what  are  the 
substantial  allegations  in  each  of  them,  what  is  the  legal 
operation  and  effect  of  those  allegations,  and  what  proof  is 
necessary  to  be  adduced  in  order  to  sustain  them;  and  I 
shall  begin  with  the  first,  not  merely  because  the  House  of 
Representatives,  in  arranging  these  articles,  have  placed 


DEFENSE  OF  PRESIDENT  JOHNSON  195 

that  first  in  order,  but  because  the  subject-matter  of  that 
article  is  of  such  a  character  that  it  forms  the  foundation 
of  the  first  eight  articles  in  the  series,  and  enters  materially 
into  two  of  the  remaining  three. 

What,  then,  is  the  substance  of  this  first  article?  What, 
as  the  lawyers  say,  are  the  gravamina  contained  in  it? 
There  is  a  great  deal  of  verbiage  —  I  do  not  mean  by  that 
unnecessary  verbiage  —  in  the  description  of  the  sub- 
stantive matters  set  down  in  this  article.  Stripped  of  that 
verbiage,  it  amounts  exactly  to  these  things :  first,  that  the 
order  set  out  in  the  article  for  the  removal  of  Mr.  Stanton, 
if  executed,  would  be  a  violation  of  the  Tenure-of-Office 
Act;  second,  that  it  was  a  violation  of  the  Tenure-of-Office 
Act;  third,  that  it  was  an  intentional  violation  of  the  Ten- 
ure-of-Office Act;  fourth,  that  it  was  a  violation  of  the 
Constitution  of  the  United  States;  and  fifth,  was  by  the 
President  intended  to  be  so.  Or,  to  draw  all  this  into  one 
sentence  which  yet  may  be  intelligible  and  clear  enough,  I 
suppose  the  substance  of  this  first  article  is  that  the  order 
for  the  removal  of  Mr.  Stanton  was  and  was  intended  to  be 
a  violation  of  the  Tenure-of-Office  Act,  and  was  intended  to 
be  a  violation  of  the  Constitution  of  the  United  States. 
These  are  the  allegations  which  it  is  necessary  for  the 
honorable  Managers  to  make  out  in  proof  to  support  that 
article. 

Now,  there  is  a  question  involved  here  which  enters 
deeply,  as  I  have  already  intimated,  into  the  first  eight 
articles  in  this  series,  and  materially  touches  two  of  the 
others;  and  to  that  question  I  desire  in  the  first  place  to 
invite  the  attention  of  the  court.  That  question  is,  whether 
Mr.  Stanton's  case  comes  under  the  Tenure-of-Office  Act. 
If  it  does  not,  if  the  true  construction  and  effect  of  the 
Tenure-of-Office  Act  when  applied  to  the  facts  of  his  case 
excludes  it,  then  it  will  be  found  by  honorable  Senators, 
when  they  come  to  examine  this  and  the  other  articles,  that 


196  THE  BRIEF 

a  mortal  wound  has  been  inflicted  upon  them  by  that 
decision.  I  must,  therefore,  ask  your  attention  to  the  con- 
struction and  appHcation  of  the  first  section  of  the  Tenure- 
of-Oflice  Act.  It  is,  as  Senators  know,  but  dry  work;  it 
requires  close,  careful  attention  and  reflection;  no  doubt  it 
will  receive  them.  Allow  me,  in  the  first  place,  to  read  that 
section : 

That  every  person  holding  any  official  office  to  which  he  has 
been  appointed  by  and  with  the  advice  and  consent  of  the  Senate, 
and  every  person  who  shall  hereafter  be  appointed  to  any  such 
office,  and  shall  become  duly  qualified  to  act  therein,  is  and  shall 
be  entitled  to  hold  such  office  until  a  successor  shall  have  been  in 
like  manner  appointed  and  duly  qualified,  except  as  herein  other- 
wise provided. 

Then  comes  what  is  "otherwise  provided": 

Provided,  That  the  Secretaries  of  State,  of  the  Treasury,  of  War, 
of  the  Navy,  and  of  the  Interior,  the  Postmaster  General,  and  the 
Attorney  General,  shall  hold  their  offices  respectively  for  and 
during  the  term  of  the  President  by  whom  they  may  have  been 
appointed,  and  for  one  month  thereafter,  subject  to  removal  by 
and  with  the  advice  and  consent  of  the  Senate. 

Here  is  a  section,  then,  the  body  of  which  applies  to  all 
civil  officers,  as  well  to  those  then  in  office  as  to  those  who 
should  thereafter  be  appointed.  The  body  of  that  section 
contains  a  declaration  that  every  such  officer  "is,"  that 
is,  if  he  is  now  in  office,  "and  shall  be,"  that  is,  if  he  shall 
hereafter  be  appointed  to  office,  entitled  to  hold  until  a 
successor  is  appointed  and  qualified  in  his  place.  That  is 
the  body  of  the  section.  But  out  of  this  body  of  the  section 
it  is  explicitly  declared  that  there  is  to  be  excepted  a 
particular  class  of  officers  —  "except  as  herein  otherwise 
provided."  There  is  to  be  excepted  out  of  this  general  de- 
scription of  all  civil  officers  a  particular  class  of  officers 
as  to  whom  something  is  "otherwise  provided";  that  is,  a 
different  rule  is  to  be  announced  for  them. 


DEFENSE  OF  PRESIDENT  JOHNSON  197 

The  Senate  will  perceive  that  in  the  body  of  the  section 
all  officers,  as  well  those  then  holding  office  as  those  there- 
after to  be  appointed,  are  included.  The  language  is: 

Every  person  holding  any  civil  office  to  which  he  has  been 
appointed,  .  .  .  and  every  person  who  shall  hereafter  be  ap- 
pointed, ...  is  and  shall  be  entitled,  etc. 

It  affects  the  present;  it  sweeps  over  all  who  are  in  office 
and  come  within  the  body  of  the  section;  it  includes  by  its 
terms  as  well  all  those  now  in  office  as  those  who  may  be  here- 
after appointed.  But  when  you  come  to  the  proviso  the  first 
noticeable  thing  is  that  this  language  is  changed;  it  is  not 
that  "every  Secretary  who  now  is,  and  hereafter  may  be,  in 
office  shall  be  entitled  to  hold  that  office"  by  a  certain  rule 
which  is  here  prescribed;  but  the  proviso,  while  it  fixes  a 
rule  for  the  future  only,  makes  no  declaration  of  the  present 
right  of  one  of  this  class  of  officers,  and  the  question  whether 
any  particular  Secretary  comes  within  that  rule  depends  on 
another  question,  whether  his  case  comes  within  the  de- 
scription contained  in  the  proviso.  There  is  no  language 
which  expressly  brings  him  within  the  proviso;  there  is  no 
express  declaration,  as  in  the  body  of  the  section,  that  "he 
is,  and  hereafter  shall  be,  entitled"  merely  because  he  holds 
the  office  of  Secretary  at  the  time  of  the  passage  of  the 
law.  There  is  nothing  to  bring  him  within  the  proviso,  I 
repeat,  unless  the  description  which  the  proviso  contains 
applies  to  and  includes  his  case.  Now,  let  us  see  if  it  does. 

That  the  Secretaries  of  State,  etc.,  shall  hold  their  offices  re- 
spectively for  and  during  the  term  of  the  President  by  whom 
they  may  have  been  appointed. 

The  first  inquiry  which  arises  on  this  language  is  as  to 
the  meaning  of  the  words  "for  and  during  the  term  of  the 
President."  Mr.  Stanton,  as  appears  by  the  commission 
which  has  been  put  into  the  case  by  the  honorable  Man- 
agers, was  appointed  in  January,  1862,  during  the  first 


198  THE  BRIEF 

term  of  President  Lincoln.  Are  these  words,  "during  the 
term  of  the  President,"  applicable  to  Mr.  Stanton's  case? 
That  depends  upon  whether  an  expounder  of  this  law 
judicially,  who  finds  set  down  in  it  as  a  part  of  the  descrip- 
tive words  "during  the  term  of  the  President,'*  has  any 
right  to  add,  "  and  any  other  term  for  which  he  may  after- 
ward be  elected."  By  what  authority  short  of  legislative 
power  can  those  words  be  put  into  the  statute  so  that 
"during  the  term  of  the  President"  shall  be  held  to  mean 
"  and  any  other  term  or  terms  for  which  the  President  may 
be  elected"?  I  respectfully  submit  no  such  judicial  inter- 
pretation can  be  put  on  the  words. 

Then,  if  you  please,  take  the  next  step.  "During  the 
term  of  the  President  by  whom  he  was  appointed."  At  the 
time  when  this  order  was  issued  for  the  removal  of  Mr. 
Stanton,  was  he  holding  "  during  the  term  of  the  President 
by  whom  he  was  appointed"?  The  honorable  Managers 
say  yes,  because,  as  they  say,  Mr.  Johnson  is  merely  serv- 
ing out  the  residue  of  Mr.  Lincoln's  term.  But  is  that  so 
under  the  provisions  of  the  Constitution  of  the  United 
States?  I  pray  you  to  allow  me  to  read  two  clauses  which 
are  applicable  to  this  question.  The  first  is  the  first  section 
of  the  second  article: 

The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America.  He  shall  hold  his  office  during  the 
term  of  four  years,  and,  together  with  the  Vice-President,  chosen 
for  the  same  term,  be  elected,  as  follows. 

There  is  a  declaration  that  the  President  and  the  Vice- 
President  is  each  respectively  to  hold  his  office  for  the  term 
of  four  years;  but  that  does  not  stand  alone;  here  is  its 
qualification: 

In  case  of  the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties 
of  the  said  office,  the  same  shall  devolve  on  the  Vice-President. 


DEFENSE  OF  PRESIDENT  JOHNSON  199 

So  that,  although  the  President,  Hke  the  Vice-President, 
is  elected  for  a  term  of  four  years,  and  each  is  elected  for 
the  same  term,  the  President  is  not  to  hold  his  office 
absolutely  during  four  years.  .The  limit  of  four  years  is  not 
an  absolute  limit.  Death  is  a  limit.  A  "conditional  limita- 
tion," as  the  lawyers  call  it,  is  imposed  on  his  tenure  of 
office.  And  when,  according  to  this  second  passage  which 
I  have  read,  the  President  dies,  his  term  of  four  years  for 
which  he  was  elected,  and  during  which  he  was  to  hold, 
provided  he  should  so  long  live,  terminates,  and  the  office 
devolves  on  the  Vice-President.  For  what  period  of  time? 
For  the  remainder  of  the  term  for  which  the  Vice-President 
was  elected.  And  there  is  no  more  propriety,  under  these 
provisions  of  the  Constitution  of  the  United  States,  in  call- 
ing the  time  during  which  Mr.  Johnson  holds  the  office  of 
President  after  it  was  devolved  upon  him  a  part  of  Mr. 
Lincoln's  term  than  there  would  be  propriety  in  saying 
that  one  sovereign  who  succeeded  to  another  sovereign  by 
death  holds  a  part  of  his  predecessor's  term.  The  term 
assigned  to  Mr.  Lincoln  by  the  Constitution  was  condi- 
tionally assigned  to  him.  It  was  to  last  four  years  if  not 
sooner  ended;  but  if  sooner  ended  by  his  death,  then  the 
office  was  devolved  on  the  Vice-President,  and  the  term  of 
the  Vice-President  to  hold  the  office  then  began. 

I  submit,  then,  that  upon  this  language  of  the  act  it  is 
apparent  that  Mr.  Stanton's  case  cannot  be  considered  as 
within  it.  This  law,  however,  as  Senators  very  well  know, 
had  a  purpose;  there  was  a  practical  object  in  the  view  of 
Congress;  and  however  clear  it  might  seem  that  the  lan- 
guage of  the  law  when  applied  to  Mr.  Stanton's  case  would 
exclude  that  case,  however  clear  that  might  seem  on  the 
mere  words  of  the  law,  if  the  purpose  of  the  law  could  be 
discerned,  and  that  purpose  plainly  required  a  different 
interpretation,  that  different  interpretation  should  be  given. 
But,  on  the  other  hand,  if  the  purpose  in  view  was  one 


200  THE  BRIEF 

requiring  that  interpretation  to  which  I  have  been  drawing 
your  attention,  then  it  greatly  strengthens  the  argument; 
because,  not  only  the  language  of  the  act  itself,  but  the 
practical  object  which  the  legislature  had  in  view  in  using 
that  language  demands  that  interpretation. 

Now,  there  can  be  no  dispute  concerning  what  that 
purpose  was,  as  I  suppose.  Here  is  a  peculiar  class  of 
officers  singled  out  from  all  others  and  brought  within  this 
provision.  Why  is  this?  It  is  because  the  Constitution  has 
provided  that  these  principal  officers  in  the  several  Exec- 
utive Departments  may  be  called  upon  by  the  President 
tor  advice  "respecting"  —  for  that  is  the  language  of  the 
Constitution  —  "their  several  duties"  —  not,  as  I  read 
the  Constitution,  that  he  may  call  upon  the  Secretary  of 
War  for  advice  concerning  questions  arising  in  the  Depart- 
ment of  War.  He  may  call  upon  him  for  advice  concerning 
questions  which  are  a  part  of  the  duty  of  the  President,  as 
well  as  questions  which  belong  only  to  the  Department  of 
War.  Allow  me  to  read  that  clause  of  the  Constitution,  and 
see  if  this  be  not  its  true  interpretation.  The  language  of 
the  Constitution  is,  that  — 

He  [the  President]  may  require  the  opinion  in  writing  of  the 
principal  officer  in  each  of  the  Executive  Departments  upon  any 
subject  relating  to  the  duties  of  their  respective  offices. 

As  I  read  it,  relating  to  the  duties  of  the  offices  of  these 
principal  officers,  or  relating  to  the  duties  of  the  President 
himself.  At  all  events,  such  was  the  practical  interpreta- 
tion put  upon  the  Constitution  from  the  beginning  of  the 
Government;  and  every  gentleman  who  listens  to  me  who 
is  familiar,  as  you  all  are,  with  the  political  history  of  the 
country,  knows  that  from  an  early  period  of  the  Adminis- 
tration of  General  Washington  his  Secretaries  were  called 
upon  for  advice  concerning  matters  not  within  their  re- 
spective Departments,  and  so  the  practice  has  continued 


DEFENSE  OF  PRESIDENT  JOHNSON  201 

from  that  time  to  this.  This  is  one  thing  which  distin- 
guishes this  class  of  officers  from  any  other  embraced 
within  the  body  of  the  law. 

But  there  is  another.  The  Constitution  undoubtedly 
contemplated  that  there  should  be  Executive  Departments 
created,  the  heads  of  which  were  to  assist  the  President  in 
the  administration  of  the  laws  as  well  as  by  their  advice. 
They  were  to  be  the  hands  and  the  voice  of  the  President; 
and  accordingly  that  has  been  so  practiced  from  the  be- 
ginning, and  the  legislation  of  Congress  has  been  framed  on 
this  assumption  in  the  organization  of  the  Departments, 
and  emphatically  in  the  act  which  constituted  the  Depart- 
ment of  War.  That  provides,  as  Senators  well  remember, 
in  so  many  words,  that  the  Secretary  of  War  is  to  dis- 
charge such  duties  of  a  general  description  there  given  as 
shall  be  assigned  to  him  by  the  President,  and  that  he  is 
to  perform  them  under  the  President's  instructions  and 
directions. 

Let  me  repeat,  that  the  Secretary  of  War  and  the  other 
Secretaries,  the  Postmaster-General  and  the  Attorney- 
General,  are  deemed  to  be  the  assistants  of  the  President  in 
the  performance  of  his  great  duty  to  take  care  that  the  laws 
are  faithfully  executed;  that  they  speak  for  and  act  for  him. 
Now,  do  not  these  two  views  furnish  the  reasons  why  this 
class  of  officers  was  excepted  out  of  the  law?  They  were  to 
be  the  advisers  of  the  President;  they  were  to  be  the  imme- 
diate confidential  assistants  of  the  President,  for  whom  he 
was  to  be  responsible,  but  in  whom  he  was  expected  to 
repose  a  great  amount  of  trust  and  confidence;  and  there- 
fore it  was  that  this  act  has  connected  the  tenure  of  office 
of  these  Secretaries  to  which  it  applies  with  the  President 
by  whom  they  were  appointed.  It  says,  in  the  description 
which  the  act  gives  of  the  future  tenure  of  office  of  Secre- 
taries, that  a  controlling  regard  is  to  be  had  to  the  fact  that 
the  Secretary  whose  tenure  is  to  be  regulated  was  appointed 


202  THE  BRIEF 

by  some  particular  President;  and  during  the  term  of  that 
President  he  shall  continue  to  hold  his  office;  but  as  for 
Secretaries  who  are  in  office,  not  appointed  by  the  Presi- 
dent, we  have  nothing  to  say;  we  leave  them  as  they  hereto- 
fore have  been.  I  submit  to  Senators  that  this  is  the  natural 
and,  having  regard  to  the  character  of  these  officers,  the 
necessary  conclusion,  that  the  tenure  of  the  office  of  a 
Secretary  here  described  is  a  tenure  during  the  term  of 
service  of  the  President  by  whom  he  was  appointed;  that 
it  was  not  the  intention  of  Congress  to  compel  a  President 
of  the  United  States  to  continue  in  office  a  Secretary  not 
appointed  by  himself. 

We  have,  however,  fortunately,  not  only  the  means  of 
interpreting  this  law  which  I  have  alluded  to,  namely,  the 
language  of  the  act,  the  evident  character  and  purpose  of 
the  act,  but  we  have  decisive  evidence  of  what  was  in- 
tended and  understood  to  be  the  meaning  and  effect  of  this 
law  in  each  branch  of  Congress  at  the  time  when  it  was 
passed.  In  order  to  make  this  more  apparent  and  its  just 
weight  more  evident,  allow  me  to  state  what  is  very  famil- 
iar, no  doubt,  to  Senators,  but  which  I  wish  to  recall  to 
their  minds,  the  history  of  this  proviso,  this  exception. 

The  bill,  as  Senators  will  recollect,  originally  excluded 
these  officers  altogether.  It  made  no  attempt,  indeed  it 
rejected  all  attempts,  to  prescribe  a  tenure  of  office  for 
them,  as  inappropriate  to  the  necessities  of  the  Govern- 
ment. So  the  bill  went  to  the  House  of  Representatives. 
It  was  there  amended  by  putting  the  Secretaries  on  the 
same  footing  as  all  other  civil  officers  appointed  with  the 
advice  and  consent  of  the  Senate,  and,  thus  amended,  came 
back  to  this  body.  This  body  disagreed  to  the  amendment. 
Thereupon  a  committee  of  conference  was  appointed,  and 
that  committee,  on  the  part  of  the  House,  had  for  its 
chairman  Hon.  Mr.  Schenck,  of  Ohio,  and  on  the  part  of 
this  body  Hon.  Mr.  Williams,  of  Oregon,  and  Hon.  Mr. 


DEFENSE  OF  PRESIDENT  JOHNSON  203 

Sherman,  of  Ohio.  The  committee  of  conference  came  to 
an  agreement  to  alter  the  bill  by  striking  these  Secretaries 
out  of  the  body  of  the  bill  and  inserting  them  in  the  proviso 
containing  the  matter  now  under  consideration.  Of  course, 
when  this  report  was  made  to  the  House  of  Representa- 
tives and  to  this  body  it  was  incumbent  on  the  committee 
charged  with  looking  after  its  intentions  and  estimates  of 
the  public  necessities  in  reference  to  that  conference  —  it 
was  expected  that  they  would  explain  what  had  been  agreed 
to,  with  a  view  that  the  body  itself,  thus  understanding 
what  had  been  agreed  to  be  done,  could  proceed  to  act 
intelligently  on  the  matter. 

Now,  I  wish  to  read  to  the  Senate  the  explanation  given 
by  Hon.  Mr.  Schenck,  the  chairman  of  this  conference  on 
the  part  of  the  House,  when  he  made  his  report  to  the 
House  concerning  this  proviso.  After  the  reading  of  the 
report,  Mr.  Schenck  said: 

I  propose  to  demand  the  previous  question  upon  the  question 
of  agreeing  to  the  report  of  the  committee  of  conference.  But 
before  doing  so,  I  will  explain  to  the  House  the  condition  of  the 
bill  and  the  decision  of  the  conference  committee  upon  it.  It  will 
be  remembered  that  by  the  bill  as  it  passed  the  Senate  it  was  pro- 
vided that  the  concurrence  of  the  Senate  should  be  required  in  all 
removals  from  office,  except  in  the  case  of  the  heads  of  Depart- 
ments. The  House  amended  the  bill  of  the  Senate  so  as  to  extend 
this  requirement  to  the  heads  of  Departments  as  well  as  to  other 
officers. 

The  committee  of  conference  have  agreed  that  the  Senate  shall 
accept  the  amendment  of  the  House.  But,  inasmuch  as  this  would 
compel  the  President  to  keep  around  him  heads  of  Departments 
until  the  end  of  his  term,  who  would  hold  over  to  another  term, 
a  compromise  was  made  by  which  a  further  amendment  is  added 
to  this  portion  of  the  bill,  so  that  the  term  of  office  of  the  heads 
of  Departments  shall  expire  with  the  term  of  the  President  who 
appointed  them,  allowing  those  heads  of  Departments  one  month 
longer,  in  which,  in  case  of  death  or  otherwise,  other  heads  of 
Departments  can  be  named.  This  is  the  whole  effect  of  the  propo- 
sition reported  by  the  committee  of  conference;  it  is,  in  fact,  an 


204.  THE  BRIEF 

acceptance  by  the  Senate  of  the  position  taken  by  the  House. 
{Congressional  Globe ,  Thirty-ninth  Congress,  Second  Session, 
p.  1340.) 

Then  a  question  was  asked,  whether  it  would  be  neces- 
sary that  the  Senate  should  concur  in  all  other  appoint- 
ments, etc.;  in  reply  to  which  Mr.  Schenck  said: 

That  is  the  case.  But  their  terms  of  office  — 

That  is,  the  Secretaries*  terms  of  office  — 

are  limited,  as  they  are  not  now  limited  by  law,  so  that  they 
expire  with  the  term  of  service  of  the  President  who  appoints 
them,  and  one  month  after,  in  case  of  death  or  other  accident, 
until  others  can  be  substituted  for  them  by  the  incoming  Presi- 
dent.   (Ibid.) 

Allow  me  to  repeat  that  sentence: 

They  expire  with  the  term  of  service  of  the  President  who 
appoints  them,  and  one  month  after,  in  case  of  death  or  other 
accident. 

In  this  body,  on  the  report  being  made,  the  chairman, 
Hon.  Mr.  Williams,  made  an  explanation.  That  explana- 
tion was  in  substance  the  same  as  that  made  by  Mr. 
Schenck  in  the  House,  and  thereupon  a  considerable  de- 
bate sprang  up,  which  was  not  the  case  in  the  House, 
for  this  explanation  of  Mr.  Schenck  was  accepted  by  the 
House  as  correct,  and  unquestionably  was  acted  upon  by 
the  House  as  giving  the  true  sense,  meaning,  and  effect  of 
this  bill.  In  this  body,  as  I  have  said,  a  considerable  de- 
bate sprang  up.  It  would  take  too  much  of  your  time  and 
too  much  of  my  strength  to  undertake  to  read  this  debate, 
and  there  is  not  a  great  deal  of  it  which  I  can  select  so  as 
to  present  it  fairly  and  intelligibly  without  reading  the  ac- 
companying parts;  but  I  think  the  whole  of  it  may  fairly 
be  summed  up  in  this  statement:  that  it  was  charged 
by  one  of  the  honorable  Senators  from  Wisconsin  that  it 
was  the  intention  of  those  who  favored  this  bill  to  keep  in 


DEFENSE  OF  PRESIDENT  JOHNSON  205 

ojQSce  Mr.  Stanton  and  certain  other  Secretaries.  That  was 
directly  met  by  the  honorable  Senator  from  Ohio,  one  of 
the  members  of  the  committee  of  conference,  by  this 
statement : 

I  do  not  understand  the  logic  of  the  Senator  from  Wisconsin. 
He  first  attributes  a  purpose  to  the  committee  of  conference  which 
I  say  is  not  true.  I  say  that  the  Senate  have  not  legislated  with  a 
view  to  any  persons  or  any  President,  and  therefore  he  commences 
by  asserting  what  is  not  true.  We  do  not  legislate  in  order  to 
keep  in  the  Secretary  of  War,  the  Secretary  of  the  Navy,  or  the 
Secretary  of  State.  (Ibid.y  p.  1516.) 

Then  a  conversation  arose  between  the  honorable 
Senator  from  Ohio  and  another  honorable  Senator,  and  the 
honorable  Senator  from  Ohio  continued  thus: 

That  the  Senate  had  no  such  purpose  is  shown  by  its  vote  twice 
to  make  this  exception.  That  this  provision  does  not  apply  to  the 
present  case  is  shown  by  the  fact  that  its  language  is  so  framed  as 
not  to  apply  to  the  present  President.  The  Senator  shows  that 
himself,  and  argues  truly  that  it  would  not  prevent  the  present 
President  from  removing  the  Secretary  of  War,  the  Secretary  of 
the  Navy,  and  the  Secretary  of  State.  And  if  I  supposed  that 
either  of  these  gentlemen  was  so  wanting  in  manhood,  in  honor, 
as  to  hold  his  place  after  the  politest  intimation  by  the  President 
of  the  United  States  that  his  services  were  no  longer  needed,  I 
certainly,  as  a  Senator,  would  consent  to  his  removal  at  any  time, 
and  so  would  we  all.    {Ibid.,  p.  1516.) 

I  read  this,  Senators,  not  as  expressing  the  opinion  of  an 
individual  Senator  concerning  the  meaning  of  a  law  which 
was  under  discussion  and  was  about  to  pass  into  legislation. 
I  read  it  as  the  report;  for  it  is  that  in  effect  —  the  explana- 
tion, rather,  of  the  report  of  the  committee  of  conference 
appointed  by  this  body  to  see  whether  this  body  could  agree 
with  the  House  of  Representatives  in  the  frame  of  this  bill, 
which  committee  came  back  here  with  a  report  that  a 
certain  alteration  had  been  made  and  agreed  upon  by  the 
committee  of  conference,  and  that  its  effect  was  what  is 


206  THE  BRIEF 

above  stated.  And  now  I  ask  the  Senate,  looking  at  the 
language  of  this  law,  looking  at  its  purpose,  looking  at  the 
circumstances  under  which  it  was  passed,  the  meaning  thus 
attached  to  it  by  each  of  the  bodies  which  consented  to  it, 
whether  it  is  possible  to  hold  that  Mr.  Stanton's  case  is 
within  the  scope  of  that  Tenure-of -Office  Act?  I  submit  it 
is  not  possible. 

I  now  return  to  the  allegations  in  this  first  article;  and 
the  first  allegation,  as  Senators  will  remember,  is  that  the 
issuing  of  the  order  which  is  set  out  in  the  article  was  a 
violation  of  the  Tenure-of -Office  Act.  It  is  perfectly  clear 
that  that  is  not  true.  The  Tenure-of -Office  Act  in  its  sixth 
section  enacts  "that  every  removal,  appointment,  or  em- 
ployment, made,  had,  or  exercised,  contrary  to  the  provi- 
sions of  this  act,"  etc.,  shall  be  deemed  a  high  misdemeanor. 
"Every  removal  contrary  to  the  provisions  of  this  act." 
In  the  first  place  no  removal  has  taken  place.  They  set  out 
an  order.  If  Mr.  Stanton  had  obeyed  that  order  there  would 
have  been  a  removal;  but,  inasmuch  as  Mr.  Stanton  dis- 
obeyed that  order,  there  was  no  removal.  So  it  is  quite  clear 
that,  looking  to  this  sixth  section  of  the  act,  they  have 
made  out  no  case  of  a  removal  within  its  terms;  and,  there- 
fore, no  case  of  violation  of  the  act  by  a  removal.  But  it 
must  not  only  be  a  removal,  it  must  be  "contrary  to  the 
provisions  of  this  act";  and,  therefore,  if  you  could  hold 
the  order  to  be  in  effect  a  removal,  unless  Mr.  Stanton's 
case  was  within  this  act,  unless  this  act  gave  Mr.  Stanton 
a  tenure  of  office  and  protected  it,  of  course  the  removal, 
even  if  it  had  been  actual  instead  of  attempted  merely, 
would  not  have  been  "contrary  to  the  provisions  of  the 
act,"  for  the  act  had  nothing  to  do  with  it. 

But  this  article,  as  Senators  will  perceive  on  looking  at 
it,  does  not  allege  simply  that  the  order  for  the  removal  of 
Mr.  Stanton  was  a  violation  of  the  Tenure-of -Office  Act. 
The  honorable  House  of  Representatives  have  not,  by  this 


DEFENSE  OF  PRESIDENT  JOHNSON  207 

article,  attempted  to  erect  a  mistake  into  a  crime.  I  have 
been  arguing  to  you  at  considerable  length,  no  doubt  trying 
your  patience  thereby,  the  construction  of  that  Tenure-of- 
Office  Law.  I  have  a  clear  idea  of  what  its  construction 
ought  to  be.  Senators,  more  or  less  of  them  who  have  lis- 
tened to  me,  may  have  a  different  view  of  its  construction, 
but  I  think  they  will  in  all  candor  admit  that  there  is  a 
question  of  construction;  there  is  a  question  what  the  mean- 
ing of  this  law  was;  a  question  whether  it  was  applicable  to 
Mr.  Stanton's  case;  a  very  honest  and  solid  question  which 
any  man  could  entertain,  and  therefore  I  repeat  it  is  im- 
portant to  observe  that  the  honorable  House  of  Repre- 
sentatives have  not,  by  this  article,  endeavored  to  charge 
the  President  with  a  high  misdemeanor  because  he  had 
been  honestly  mistaken  in  construing  that  law.  They  go 
further  and  take  the  necessary  step.  They  charge  him  with 
intentionally  misconstruing  it;  they  say,  "Which  order 
was  unlawfully  issued  with  intention  then  and  there  to  vio- 
late said  act."  So  that,  in  order  to  maintain  the  substance 
of  this  article,  without  which  it  was  not  designed  by  the 
House  of  Representatives  to  stand  and  cannot  stand,  it  is 
necessary  for  them  to  show  that  the  President  willfully  mis- 
construed this  law;  that  having  reason  to  believe  and  ac- 
tually believing,  after  the  use  of  due  inquiry,  that  Mr. 
Stanton's  case  was  within  the  law,  he  acted  as  if  it  was  not 
within  the  law.  That  is  the  substance  of  the  charge. 

What  is  the  proof  in  support  of  that  allegation  offered 
by  the  honorable  Managers?  Senators  must  undoubtedly 
be  familiar  with  the  fact  that  the  office  of  President  of  the 
United  States,  as  well  as  many  other  executive  offices,  and, 
to  some  extent,  legislative  offices,  call  upon  those  who  hold 
them  for  the  exercise  of  judgment  and  skill  in  the  construc- 
tion and  application  of  laws.  It  is  true  that  the  strictly 
judicial  power  of  the  country,  technically  speaking,  is 
vested  in  the  Supreme  Court  and  such  inferior  courts  as 


208  I  THE  BRIEF 

Congress  from  time  to  time  have  established  or  may  estab- 
lish. But  there  is  a  great  mass  of  work  to  be  performed  by 
executive  officers  in  the  discharge  of  their  duties,  which  is 
of  a  judicial  character.  Take,  for  instance,  all  that  is  done 
in  the  auditing  of  accounts;  that  is  judicial  whether  it  be 
done  by  an  auditor  or  a  comptroller,  or  whether  it  be  done 
by  a  chancellor;  and  the  work  has  the  same  character 
whether  done  by  one  or  by  the  other.  They  must  construe 
and  apply  the  laws;  they  must  investigate  and  ascertain 
facts;  they  must  come  to  some  results  compounded  of  the 
law  and  of  the  facts. 

Now,  this  class  of  duties  the  President  of  the  United 
States  has  to  perform.  A  case  is  brought  before  him,  which, 
in  his  judgment,  calls  for  action;  his  first  inquiry  must  be, 
What  is  the  law  on  the  subject?  He  encounters,  among 
other  things,  this  Tenure-of -Office  Law  in  the  course  of  his 
inquiry.  His  first  duty  is  to  construe  that  law;  to  see 
whether  it  applies  to  the  case;  to  use,  of  course,  in  doing  so, 
all  those  means  and  appliances  which  the  Constitution 
and  the  laws  of  the  country  have  put  into  his  hands  to 
enable  him  to  come  to  a  correct  decision.  But,  after  all,  he 
must  decide,  in  order  either  to  act  or  to  refrain  from  action. 

That  process  the  President  in  this  case  was  obliged  to 
go  through,  and  did  go  through;  and  he  came  to  the  con- 
clusion that  the  case  of  Mr.  Stanton  was  not  within  this 
law.  He  came  to  that  conclusion,  not  merely  by  an  exami- 
nation of  this  law  himself,  but  by  resorting  to  the  advice 
which  the  Constitution  and  laws  of  the  country  enable  him 
to  call  for  to  assist  him  in  coming  to  a  correct  conclusion. 
Having  done  so,  are  the  Senate  prepared  to  say  that  the 
conclusion  he  reached  must  have  been  a  willful  mis- 
construction —  so  willful,  so  wrong,  that  it  can  justly  and 
properly,  and  for  the  purpose  of  this  prosecution,  effectively 
be  termed  a  high  misdemeanor?  How  does  the  law  read? 
What  are  its  purposes  and  objects?  How  was  it  understood 


DEFENSE  OF  PRESIDENT  JOHNSON  209 

here  at  the  time  when  it  was  passed?  How  is  it  possible  for 
this  body  to  convict  the  President  of  the  United  States  of  a 
high  misdemeanor  for  construing  a  law  as  those  who  made 
it  construed  it  at  the  time  when  it  was  made? 

I  submit  to  the  Senate  that  thus  far  no  great  advance 
has  been  made  toward  the  conclusion  either  that  the  allega- 
tion in  this  article  that  this  order  was  a  violation  of  the 
Tenure-of -Office  Act  is  true,  or  that  there  was  an  intent  on 
the  part  of  the  President  thus  to  violate  it.  And,  although 
we  have  not  yet  gone  over  all  the  allegations  in  this  article, 
we  have  met  its  "head  and  front,"  and  what  remains  will 
be  found  to  be  nothing  but  incidental  and  circumstantial, 
and  not  the  principal  subject.  If  Mr.  Stanton  was  not 
within  this  act,  if  he  held  the  office  of  Secretary  for  the 
Department  of  War  at  the  pleasure  of  President  Johnson, 
as  he  held  it  at  the  pleasure  of  President  Lincoln,  if  he 
was  bound  by  law  to  obey  that  order  which  was  given 
to  him,  and  quit  the  place,  instead  of  being  sustained  by 
law  in  resisting  that  order,  I  think  the  honorable  Managers 
will  find  it  extremely  difficult  to  construct  out  of  the  broken 
fragments  of  this  article  anything  which  will  amount  to  a 
high  misdemeanor.  What  are  they?  They  are,  in  the  first 
place,  that  the  President  did  violate,  and  intended  to  vio- 
late, the  Constitution  of  the  United  States  by  giving  this 
order.  Why?  They  say,  as  I  understand  it,  because  the 
order  of  removal  was  made  during  the  session  of  the  Senate; 
that  for  that  reason  the  order  was  a  violation  of  the  Con- 
stitution of  the  United  States. 

I  desire  to  be  understood  on  this  subject.  If  I  can  make 
my  own  ideas  of  it  plain,  I  think  nothing  is  left  of  this  alle- 
gation. In  the  first  place,  the  case,  as  Senators  will  observe, 
which  is  now  under  consideration,  is  the  case  of  a  Secretary 
of  War  holding  during  the  pleasure  of  the  President  by  the 
terms  of  his  commission;  holding  under  the  Act  of  1789, 
which  created  that  Department,  which,  although  it  does 


210  THE  BRIEF 

not  affect  to  confer  on  the  President  the  power  to  remove 
the  Secretary,  does  clearly  imply  that  he  has  that  power 
by  making  a  provision  for  what  shall  happen  in  case  he 
exercises  it.  That  is  the  case  which  is  under  consideration, 
and  the  question  is  this:  whether  under  the  law  of  1789  and 
the  tenure  of  office  created  by  that  law,  designedly  created 
by  that  law,  after  the  great  debate  of  1789,  and  whether 
under  a  commission  which  conforms  to  it,  holding  during 
the  pleasure  of  the  President,  the  President  could  remove 
such  a  Secretary  during  the  session  of  the  Senate.  Why 
not?  Certainly  there  is  nothing  in  the  Constitution  of  the 
United  States  to  prohibit  it.  The  Constitution  has  made 
two  distinct  provisions  for  filling  offices.  One  is  by  nom- 
ination to  the  Senate  and  confirmation  by  them  and  a  com- 
mission by  the  President  upon  that  confirmation.  The 
other  is  by  commissioning  an  officer  when  a  vacancy  hap- 
pens during  a  recess  of  the  Senate.  But  the  question  now 
before  you  is  not  a  question  how  vacancies  shall  be  filled; 
that  the  Constitution  has  thus  provided  for;  it  is  a  question 
how  they  may  be  created  and  when  they  may  be  created  — 
a  totally  distinct  question. 

Whatever  may  be  thought  of  the  soundness  of  the  con- 
clusion arrived  at  upon  the  great  debate  in  1789  concerning 
the  tenure  of  office,  or  concerning  the  power  of  removal 
from  office,  no  one,  I  suppose,  will  question  that  a  conclu- 
sion was  arrived  at;  and  that  conclusion  was  that  the  Con- 
stitution had  lodged  with  the  President  the  power  of  re- 
moval from  office  independently  of  the  Senate.  This  may 
be  a  decision  proper  to  be  reversed;  it  may  have  been  now 
reversed;  of  that  I  say  nothing  at  present;  but  that  it  was 
made,  and  that  the  legislation  of  Congress  in  1789  and  so 
on  down  during  the  whole  period  of  legislation  to  1867  pro- 
ceeded upon  the  assumption,  express  or  implied,  that  that 
decision  had  been  made,"  nobody  who  understands  the 
history  of  the  legislation  of  the  country  will  deny. 


DEFENSE  OF  PRESIDENT  JOHNSON  211 

Consider,  if  you  please,  what  this  decision  was.  It  was 
that  the  Constitution  had  lodged  this  power  in  the  Presi- 
dent; that  he  alone  was  to  exercise  it;  that  the  Senate  had 
not,  and  could  not  have,  any  control  whatever  over  it.  If 
that  be  so,  of  what  materiality  is  it  whether  the  Senate  is 
in  session  or  not?  If  the  Senate  is  not  in  session,  and  the 
President  has  this  power,  a  vacancy  is  created,  and  the 
Constitution  has  made  provision  for  filling  that  vacancy  by 
commission  until  the  end  of  the  next  session  of  the  Senate. 
If  the  Senate  is  in  session,  then  the  Constitution  has  made 
provision  for  filling  a  vacancy  which  is  created  by  a  nomi- 
nation to  the  Senate;  and  the  laws  of  the  country,  as  I  am 
presently  going  to  show  you  somewhat  in  detail,  have  made 
provisions  for  filling  it  ad  interim  without  any  nomination, 
if  the  President  is  not  prepared  to  make  a  nomination  at  the 
moment  when  he  finds  the  public  service  requires  the  re- 
moval of  an  officer.  So  that,  if  this  be  a  case  within  the 
scope  of  the  decision  made  by  Congress  in  1789,  and  within 
the  scope  of  the  legislation  which  followed  upon  that  de- 
cision, it  is  a  case  where,  either  by  force  of  the  Constitution 
the  President  had  the  power  of  removal  without  consulting 
the  Senate,  or  else  the  legislation  of  Congress  had  given  it  to 
him;  and  either  way  neither  the  Constitution  nor  the  legis- 
lation of  Congress  had  made  it  incumbent  on  him  to  con- 
sult the  Senate  on  the  subject. 

I  submit,  then,  that  if  you  look  at  this  matter  of  Mr. 
Stanton's  removal  just  as  it  stands  on  the  decision  in  178.9 
or  on  the  legislation  of  Congress  following  upon  that  deci- 
sion, and  in  accordance  with  which  are  the  terms  of  the 
commission  under  which  Mr.  Stanton  held  office,  you  must 
come  to  the  conclusion,  without  any  further  evidence  on  the 
subject,  that  the  Senate  had  nothing  whatever  to  do  with 
the  removal  of  Mr.  Stanton,  either  to  advise  for  it  or  to 
advise  against  it;  that  it  came  either  under  the  constitu- 
tional power  of  the  President  as  it  had  been  interpreted  in 


212  THE  BRIEF 

1789  or  it  came  under  the  grant  made  by  the  Legislature  to 
the  President  in  regard  to  all  those  Secretaries  not  included 
within  the  Tenure-of-Office  Bill.  This,  however,  does  not 
rest  simply  upon  this  application  of  the  Constitution  and 
of  the  legislation  of  Congress.  There  has  been,  and  we 
shall  bring  it  before  you,  a  practice  by  the  Government, 
going  back  to  a  very  early  day,  and  coming  down  to  a  recent 
period,  for  the  President  to  make  removals  from  office  when 
the  case  called  for  them,  without  regard  to  the  fact  whether 
the  Senate  was  in  session  or  not.  The  instances,  of  course, 
would  not  be  numerous.  If  the  Senate  was  in  session  the 
President  would  send  a  nomination  to  the  Senate  saying, 
"  A  B  in  place  of  C  D,  removed  " ;  but  then  there  were  occa- 
sions, not  frequent,  I  agree,  but  there  were  occasions,  as 
you  will  see  might  naturally  happen,  when  the  President, 
perhaps,  had  not  had  time  to  select  a  person  whom  he 
would  nominate,  and  when  he  could  not  trust  the  officer 
then  in  possession  of  the  office  to  continue  in  it,  when  it 
was  necessary  for  him  by  a  special  order  to  remove  him 
from  the  office  wholly  independent  of  any  nomination  sent 
in  to  the  Senate.  Let  me  bring  before  your  consideration 
for  a  moment  a  very  striking  case  which  happened  recently 
enough  to  be  within  the  knowledge  of  many  of  you.  We 
were  on  the  eve  of  a  civil  war;  the  War  Department  was  in 
the  hands  of  a  man  who  was  disloyal  and  unfaithful  to  his 
trust;  his  chief  clerk  who,  on  his  removal  or  resignation, 
would  come  into  the  place,  was  believed  to  be  in  the  same 
category  with  his  master.  Under  those  circumstances  the 
President  of  the  United  States  said  to  Mr.  Floyd,  "I  must 
have  possession  of  this  office";  and  Mr.  Floyd  had  too 
much  good  sense  or  good  manners  or  something  else  to  do 
anything  but  resign;  and  instantly  the  President  put  into 
the  place  General  Holt,  the  Postmaster-General  of  the 
United  States  at  the  time,  without  the  delay  of  an  hour. 
It  was  a  time  when  a  delay  of  twenty-four  hours  might 


DEFENSE   OF  PRESIDENT  JOHNSON  213 

have  been  of  vast  practical  consequence  to  the  country. 
There  are  classes  of  cases  arising  in  all  the  Departments  of 
that  character  followed  by  that  action;  and  we  shall  bring 
before  you  evidence  showing  what  those  cases  have  been, 
so  that  it  will  appear  that  so  long  as  officers  held  at  the 
pleasure  of  the  President  and  wholly  independent  of  the 
advice  which  he  might  receive  in  regard  to  their  removal 
from  the  Senate,  so  long,  whenever  there  was  an  occasion, 
the  President  used  the  power,  whether  the  Senate  was  in 
session  or  not. 

I  have  now  gone  over.  Senators,  the  considerations  which 
seem  to  me  to  be  applicable  to  the  Tenure-of-Office  Bill, 
and  to  this  allegation  which  is  made  that  the  President 
knowingly  violated  the  Constitution  of  the  United  States 
in  the  order  for  the  removal  of  Mr.  Stanton  from  office 
while  the  Senate  was  in  session;  and  the  counsel  for  the 
President  feel  that  it  is  not  essential  to  his  vindication  from 
this  charge  to  go  further  upon  this  subject.  Nevertheless, 
there  is  a  broader  view  of  this  matter,  which  is  an  actual 
part  of  the  case,  and  it  is  due  to  the  President  it  should  be 
brought  before  you,  that  I  now  propose  to  open  to  your 
consideration. 

The  Constitution  requires  the  President  of  the  United 
States  to  take  care  that  the  laws  be  faithfully  executed. 
It  also  requires  of  him,  as  a  qualification  for  his  office,  to 
swear  that  he  will  faithfully  execute  the  laws,  and  that,  to 
the  best  of  his  ability,  he  will  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States.  I  suppose  every 
one  will  agree  that  so  long  as  the  President  of  the  United 
States,  in  good  faith,  is  endeavoring  to  take  care  that  the 
laws  be  faithfully  executed,  and  in  good  faith  and  to  the 
best  of  his  ability  is  preserving,  protecting,  and  defending 
the  Constitution  of  the  United  States,  although  he  may  be 
making  mistakes,  he  is  not  committing  high  crimes  or  mis- 
demeanors. 


214  THE  BRIEF 

In  the  execution  of  these  duties  the  President  found,  for 
reasons  which  it  is  not  my  province  at  this  time  to  enter 
upon,  but  which  will  be  exhibited  to  you  hereafter,  that  it 
was  impossible  to  allow  Mr.  Stanton  to  continue  to  hold 
the  office  of  one  of  his  advisers,  and  to  be  responsible  for 
his  conduct  in  the  manner  he  was  required  by  the  Constitu- 
tion and  laws  to  be  responsible,  any  longer.  This  was  in- 
timated to  Mr.  Stanton,  and  did  not  produce  the  effect 
which,  according  to  the  general  judgment  of  well-informed 
men,  such  intimations  usually  produce.  Thereupon  the 
President  first  suspended  Mr.  Stanton,  and  reported  that  to 
the  Senate.  Certain  proceedings  took  place  which  will  be 
adverted  to  more  particularly  presently.  They  resulted  in 
the  return  of  Mr.  Stanton  to  the  occupation  by  him  of  this 
office.  Then  it  became  necessary  for  the  President  to  con- 
sider, first,  whether  this  Tenure-of-Office  Law  applied  to 
the  case  of  Mr.  Stanton;  secondly,  if  it  did  apply  to  the 
case  of  Mr.  Stanton,  whether  the  law  itself  was  the  law 
of  the  land,  or  was  merely  inoperative  because  it  exceeded 
the  constitutional  power  of  the  Legislature. 

I  am  aware  that  it  is  asserted  to  be  the  civil  and  moral 
duty  of  all  men  to  obey  those  laws  which  have  been  passed 
through  all  the  forms  of  legislation  until  they  shall  have 
been  decreed  by  judicial  authority  not  to  be  binding;  but 
this  is  too  broad  a  statement  of  the  civil  and  moral  duty 
incumbent  either  upon  private  citizens  or  public  officers. 
If  this  is  the  measure  of  duty,  there  never  could  be  a  judicial 
decision  that  a  law  is  unconstitutional,  inasmuch  as  it  is 
only  by  disregarding  a  law  that  any  question  can  be  raised 
judicially  under  it.  I  submit  to  Senators  that  not  only  is 
there  no  such  rule  of  civil  or  moral  duty,  but  that  it  may 
be  and  has  been  a  high  and  patriotic  duty  of  a  citizen  to 
raise  a  question  whether  a  law  is  within  the  Constitution  of 
the  country.  Will  any  man  question  the  patriotism  or  the 
propriety  of  John  Hampden's  act  when  he  brought  the 


DEFENSE  OF  PRESIDENT  JOHNSON         215 

question  whether  "ship  money"  was  within  the  Constitu- 
tion of  England  before  the  courts  of  England?  Not  only  is 
there  no  such  rule  incumbent  upon  private  citizens  which 
forbids  them  to  raise  such  questions,  but,  let  me  repeat, 
there  may  be,  as  there  not  unfrequently  have  been,  in- 
stances in  which  the  highest  patriotism  and  the  purest  civil 
and  moral  duty  require  it  to  be  done.  Let  me  ask  any  one 
of  you,  if  you  were  a  trustee  for  the  rights  of  third  persons, 
and  those  rights  of  third  persons,  which  they  could  not 
defend  themselves  by  reason,  perhaps,  of  sex  or  age,  should 
be  attacked  by  an  unconstitutional  law,  should  you  not 
deem  it  to  be  your  sacred  duty  to  resist  it  and  have  the 
question  tried?  And,  if  a  private  trustee  may  be  subject  to 
such  a  duty,  and  impelled  by  it  to  such  action,  how  is  it 
possible  to  maintain  that  he  who  is  a  trustee  for  the  people 
of  powers  confided  to  him  for  their  protection,  for  their 
security,  for  their  benefit,  may  not,  in  that  character  of 
trustee,  defend  what  has  thus  been  confided  to  him? 

Do  not  let  me  be  misunderstood  on  this  subject.  I  am 
not  intending  to  advance  upon  or  occupy  any  extreme 
ground,  because  no  such  extreme  ground  has  been  advanced 
upon  or  occupied  by  the  President  of  the  United  States. 
He  is  to  take  care  that  the  laws  are  faithfully  executed. 
When  a  law  has  been  passed  through  the  forms  of  legisla- 
tion, either  with  his  assent  or  without  his  assent,  it  is  his 
duty  to  see  that  that  law  is  faithfully  executed  so  long  as 
nothing  is  required  of  him  but  ministerial  action.  He  is  not 
to  erect  himself  into  a  judicial  court  and  decide  that  the 
law  is  unconstitutional,  and  that  therefore  he  will  not 
execute  it;  for,  if  that  were  done,  manifestly  there  never 
could  be  a  judicial  decision.  He  would  not  only  veto  a  law, 
but  he  would  refuse  all  action  under  the  law  after  it  had 
been  passed,  and  thus  prevent  any  judicial  decision  from 
being  made.  He  asserts  no  such  power.  He  has  no  such 
idea  of  his  duty.  His  idea  of  his  duty  is  that  if  a  law  is 


216  THE  BRIEF 

passed  over  his  veto  which  he  beheves  to  be  unconstitu- 
tional, and  that  law  affects  the  interests  of  third  persons, 
those  whose  interests  are  affected  must  take  care  of  them, 
vindicate  them,  raise  questions  concerning  them,  if  they 
should  be  so  advised.  If  such  a  law  affects  the  general  and 
public  interests  of  the  people  the  people  must  take  care  at 
the  polls  that  it  is  remedied  in  a  constitutional  way. 

But  when.  Senators,  a  question  arises  whether  a  par- 
ticular law  has  cut  off  a  power  confided  to  him  by  the 
people  through  the  Constitution,  and  he  alone  can  raise 
that  question,  and  he  alone  can  cause  a  judicial  decision  to 
come  between  the  two  branches  of  the  Government  to  say 
which  of  them  is  right,  and,  after  due  deliberation,  with  the 
advice  of  those  who  are  his  proper  advisers,  he  settles  down 
firmly  upon  the  opinion  that  such  is  the  character  of  the 
law,  it  remains  to  be  decided  by  you  whether  there  is  any 
violation  of  his  duty  when  he  takes  the  needful  steps  to 
raise  that  question  and  have  it  peacefully  decided. 

Where  shall  the  line  be  drawn?  Suppose  a  law  should 
provide  that  the  President  of  the  United  States  should  not 
make  a  treaty  with  England  or  with  any  other  country.^ 
It  would  be  a  plain  infraction  of  his  constitutional  power, 
and  if  an  occasion  arose  when  such  a  treaty  was  in  his 
judgment  expedient  and  necessary  it  would  be  his  duty  to 
make  it;  and  the  fact  that  it  should  be  declared  to  be  a 
high  misdemeanor  if  he  made  it  would  no  more  relieve  him 
from  the  responsibility  of  acting  through  the  fear  of  that 
law  than  he  would  be  relieved  of  that  responsibility  by  a 
bribe  not  to  act. 

Suppose  a  law  that  he  shall  not  be  Commander-in-Chief 
in  part  or  in  whole  —  a  plain  case,  I  will  suppose,  of  an 
infraction  of  that  provision  of  the  Constitution  which  has 
confided  to  him  that  command;  the  Constitution  intending 
that  the  head  of  all  the  military  power  of  the  country  should 
be  a  civil  magistrate,  to  the  end  that  the  law  may  always  be 


DEFENSE  OF  PRESIDENT  JOHNSON  217 

superior  to  arms.  Suppose  he  should  resist  a  statute  of  that 
kind  in  the  manner  I  have  spoken  of  by  bringing  it  to  a 
judicial  decision? 

It  may  be  said  these  are  plain  cases  of  express  infractions 
of  the  Constitution;  but  what  is  the  difference  between  a 
power  conferred  upon  the  President  by  the  express  words  of 
the  Constitution  and  a  power  conferred  upon  the  President 
by  a  clear  and  sufficient  implication  in  the  Constitution? 
Where  does  the  power  to  make  banks  come  from?  Where 
does  the  power  come  from  to  limit  Congress  in  assigning 
original  jurisdiction  to  the  Supreme  Court  of  the  United 
States,  one  of  the  cases  referred  to  the  other  day?  Where  do 
a  multitude  of  powers  upon  which  Congress  acts  come  from 
in  the  Constitution  except  by  fair  implications?  Whence 
do  you  derive  the  power,  while  you  are  limiting  the  tenure 
of  office,  to  confer  on  the  Senate  the  right  to  prevent  re- 
tnovals  without  their  consent?  Is  that  expressly  given  in 
the  Constitution,  or  is  it  an  implication  which  is  made  from 
some  of  its  provisions? 

I  submit  it  is  impossible  to  draw  any  line  of  duty  for  the 
President  simply  because  a  power  is  derived  from  an  im- 
plication in  the  Constitution  instead  of  from  an  express 
provision.  One  thing  unquestionably  is  to  be  expected  of 
the  President  on  all  such  occasions,  that  is,  that  he  should 
carefully  consider  the  question;  that  he  should  ascertain 
that  it  necessarily  arises;  that  he  should  be  of  opinion  that 
it  is  necessary  to  the  public  service  that  it  should  be  de- 
cided; that  he  should  take  all  competent  and  proper  advice 
on  the  subject.  When  he  has  done  all  this,  if  he  finds  that 
he  cannot  allow  the  law  to  operate  in  the  particular  case 
without  abandoning  a  power  which  he  believes  has  been 
confided  to  him  by  the  people,  it  is  his  solemn  conviction 
that  it  is  his  duty  to  assert  the  power  and  obtain  a  judicial 
decision  thereon.  And  although  he  does  not  perceive,  nor 
do  his  counsel  perceive,  that  it  is  essential  to  his  defense  in 


218  THE  BRIEF 

this  case  to  maintain  this  part  of  the  argument,  neverthe- 
less, if  this  tribunal  should  be  of  that  opinion,  then  before 
this  tribunal,  before  all  the  people  of  the  United  States, 
and  before  the  civilized  world,  he  asserts  the  truth  of  this 
position. 

I  am  compelled  now  to  ask  your  attention,  quite  briefly, 
however,  to  some  considerations  which  weighed  upon  the 
mind  of  the  President  and  led  him  to  the  conclusion  that  this 
was  one  of  the  powers  of  his  office  which  it  was  his  duty, 
in  the  manner  I  have  indicated,  to  endeavor  to  preserve. 

The  question  whether  the  Constitution  has  lodged  the 
power  of  removal  with  the  President  alone,  with  the  Presi- 
dent and  Senate,  or  left  it  to  Congress  to  be  determined  at 
its  will  in  fixing  the  tenure  of  offices,  was,  as  all  Senators 
know,  debated  in  1789  with  surpassing  ability  and  knowl- 
edge of  the  frame  and  necessities  of  our  Government. 

Now,  it  is  a  rule  long  settled,  existing,  I  suppose,  in  all 
civilized  countries,  certainly  in  every  system  of  law  that  I 
have  any  acquaintance  with,  that  a  contemporary  expo- 
sition of  a  law  made  by  those  who  were  competent  to  give 
it  a  construction  is  of  very  great  weight;  and  that  when 
such  contemporary  exposition  has  been  made  of  a  law,  and 
it  has  been  followed  by  an  actual  and  practical  construc- 
tion in  accordance  with  that  contemporary  exposition,  con- 
tinued during  a  long  period  of  time  and  applied  to  great 
numbers  of  cases,  it  is  afterward  too  late  to  call  in  question 
the  correctness  of  such  a  construction.  The  rule  is  laid 
down,  in  the  quaint  language  of  Lord  Coke,  in  this  form : 

Great  regard  ought,  in  construing  a  law,  to  be  paid  to  the  con- 
struction which  the  sages  who  lived  about  the  time  or  soon  after 
it  was  made  put  upon  it,  because  they  were  best  able  to  judge  of 
the  intention  of  the  makers  at  the  time  when  the  law  was  made. 
Contemporania  expositio  est  fortissima  in  legem. 

I  desire  to  bring  before  the  Senate  in  this  connection, 
inasmuch  as  I  think  the  subject  has  been  frequently  mis- 


DEFENSE   OF  PRESIDENT   JOHNSON  219 

understood,  the  form  taken  by  that  debate  of  1789  and  the 
result  which  was  attained.  In  order  to  do  so,  and  at  the 
same  time  to  avoid  fatiguing  your  attention  by  looking 
minutely  into  the  debate  itseK,  I  beg  leave  to  read  a  pas- 
sage from  Chief  Justice  Marshall's  Life  of  Washington^ 
where  he  has  summed  up  the  whole.  The  writer  says,  on 
page  162  of  the  second  volume  of  the  Philadelphia  edition: 

After  an  ardent  discussion,  which  consumed  several  days,  the 
committee  divided,  and  the  amendment  was  negatived  by  a 
majority  of  thirty- four  to  twenty.  The  opinion  thus  expressed 
by  the  House  of  Representatives  did  not  explicitly  convey  their 
sense  of  the  Constitution.  Indeed,  the  express  grant  of  the  power 
to  the  President  rather  implied  a  right  in  the  Legislature  to  give 
or  withhold  it  at  their  discretion.  To  obviate  any  misunderstand- 
ing of  the  principle  on  which  the  question  had  been  decided,  Mr. 
Benson  moved  in  the  House,  when  the  report  of  the  Committee 
of  the  Whole  was  taken  up,  to  amend  the  second  clause  in  the  bill 
so  as  clearly  to  imply  the  power  of  removal  to  be  solely  in  the 
President.  He  gave  notice  that  if  he  should  succeed  in  this  he 
would  move  to  strike  out  the  words  which  had  been  the  subject 
of  debate.  If  those  words  continued,  he  said,  the  power  of  removal 
by  the  President  might  hereafter  appear  to  be  exercised  by  virtue 
of  a  legislative  grant  only,  and  consequently  be  subjected  to  legis- 
lative instability;  when  he  was  well  satisfied  in  his  own  mind  that 
it  was  by  fair  construction  fixed  in  the  Constitution.  The  motion 
was  seconded  by  Mr.  Madison,  and  both  amendments  were 
adopted.  As  the  bill  passed  into  a  law,  it  has  ever  been  considered 
as  a  full  expression  of  the  sense  of  the  Legislature  on  this  impor- 
tant part  of  the  American  Constitution. 

Some  allusion  has  been  made  to  the  fact  that  this  law 
was  passed  in  the  Senate  only  by  the  casting  vote  of  the 
Vice-President;  and  upon  that  subject  I  beg  leave  to  refer 
to  the  life  of  Mr.  Adams  by  his  grandson,  volume  one  of 
his  works,  pages  448  to  450.  He  here  gives  an  account,  so 
far  as  could  be  ascertained  from  the  papers  of  President 
Adams,  of  what  that  debate  was,  and  finally  terminates 
the  subject  in  this  way: 


220  THE  BRIEF 

These  reasons — 
That  is,  the  reasons  of  Vice-President  Adams  — 

were  not  committed  to  paper,  however,  and  can  therefore 
never  be  known.  But  in  their  soundness  it  is  certain  that  he  never 
had  the  shadow  of  a  doubt. 

I  desire  leave,  also,  to  refer  on  this  subject  to  the  first 
volume  of  Story's  Commentaries  on  the  Constitution,  section 
four  hundred  and  eight,  in  support  of  the  rule  of  interpreta- 
tion which  I  have  stated  to  the  Senate.  It  will  there  be 
found  that  it  is  stated  by  the  learned  commentator  that  a 
contemporaneous  construction  of  the  Constitution  made 
under  certain  circumstances,  which  he  describes,  is  of  very 
great  weight  in  determining  its  meaning.  He  says: 

After  all,  the  most  unexceptionable  source  of  collateral  interpre- 
tation is  from  the  practical  exposition  of  the  Government  itself  in 
its  various  departments  upon  particular  questions  discussed  and 
settled  upon  their  own  single  merits.  These  approach  the  nearest 
in  their  own  nature  to  judicial  expositions,  and  have  the  same 
general  recommendation  that  belongs  to  the  latter.  They  are 
decided  upon  solemn  argument,  'pro  re  nata,  upon  a  doubt  raised, 
upon  a  lis  mota,  upon  a  deep  sense  of  their  importance  and  diffi- 
culty, in  the  face  of  the  nation,  with  a  view  to  present  action  in 
the  midst  of  jealous  interests,  and  by  men  capable  of  urging  or 
repelling  the  grounds  of  argument  from  their  exquisite  genius, 
their  comprehensive  learning,  or  their  deep  meditation  upon  the 
absorbing  topic.  How  light,  compared  with  these  means  of  in- 
struction, are  the  private  lucubrations  of  the  closet  or  the  retired 
speculations  of  ingenious  minds,  intent  on  theory  or  general  views, 
and  unused  to  encounter  a  practical  difficulty  at  every  step! 

On  comparing  the  decision  made  in  1789  with  the  tests 
which  are  here  suggested  by  the  learned  commentator,  it 
will  be  found,  in  the  first  place,  that  the  precise  question 
was  under  discussion;  secondly,  that  there  was  a  deep  sense 
of  its  importance,  for  it  was  seen  that  the  decision  was  not 
to  affect  a  few  cases  lying  here  and  there  in  the  course  of 


DEFENSE  OF  PRESIDENT  JOHNSON  221 

the  Government,  but  that  it  would  enter  deeply  into  its 
practical  and  daily  administration ;  and,  in  the  next  place, 
the  determination  was,  so  far  as  such  determination  could 
be  entertained,  thereby  to  fix  a  system  for  the  future;  and, 
in  the  last  place,  the  men  who  participated  in  it  must  be 
admitted  to  have  been  exceedingly  well  qualified  for  their 
work. 

There  is  another  rule  to  be  added  to  this,  which  is  also 
one  of  very  frequent  application,  and  it  is  that  a  long- 
continued  practical  application  of  a  decision  of  this  char- 
acter by  those  to  whom  the  execution  of  a  law  is  confided 
is  of  decisive  weight.  To  borrow  again  from  Lord  Coke 
on  this  subject,  ^'Optimus  legum  inter pr es  consuetudo^'  — 
*' Practice  is  the  best  interpreter  of  law."  Now,  what  fol- 
lowed this  original  decision?  From  1789  down  to  1867  every 
President  and  every  Congress  participated  in  and  acted 
under  the  construction  given  in  1789.  Not  only  did  the 
Government  so  conduct,  but  it  was  a  subject  sufficiently 
discussed  among  the  people  to  bring  to  their  consideration 
that  such  a  question  had  existed,  had  been  started,  had 
been  settled  in  this  manner,  had  been  raised  again  from 
time  to  time,  and  yet,  as  everybody  knows,  so  far  from  the 
people  interfering  with  this  decision,  so  far  from  ever  ex- 
pressing in  any  manner  their  disapprobation  of  the  practice 
which  had  grown  up  under  it,  not  one  party  nor  two  parties 
but  all  parties  favored  and  acted  upon  this  system  of 
Government.  .  .  . 

This  is  a  subject  which  has  been  heretofore  examined  and 
passed  upon  judicially  in  very  numerous  cases.  I  do  not 
speak  now,  of  course,  of  judicial  decisions  of  this  particular 
question  which  is  under  consideration,  whether  the  Con- 
stitution has  lodged  the  power  of  removal  in  the  President 
alone,  or  in  the  President  and  Senate,  or  has  left  it  to  be  a 
part  of  the  legislative  power;  but  I  speak  of  the  judicial 
exposition  of  the  effect  of  such  a  practical  construction  of 


222  '  THE  BRIEF 

the  Constitution  of  the  United  States  originated  in  the  way 
in  which  this  was  originated,  continued  in  the  way  in  which 
this  was  continued,  and  sanctioned  in  the  way  in  which 
this  has  been  sanctioned. 

There  was  a  very  early  case  that  arose  soon  after  the 
organization  of  the  Government,  and  which  is  reported 
under  the  name  of  Stuart  vs.  Laird,  in  1  Cranch's  Reports, 
299.  It  was  a  question  concerning  the  interpretation  of  the 
Constitution  concerning  the  power  which  the  Congress  had 
to  assign  to  the  judges  of  the  Supreme  Court  circuit  duties. 
From  that  time  down  to  the  decision  in  the  case  of  Cooley 
vs.  The  Port  Wardens  of  Philadelphia,  reported  in  12 
Howard,  315,  a  period  of  more  than  half  a  century,  there 
has  been  a  series  of  decisions  upon  the  effect  of  such  a 
contemporaneous  construction  of  the  Constitution,  fol- 
lowed by  such  a  practice  in  accordance  with  it;  and  it  is  now 
a  fixed  and  settled  rule,  which,  I  think,  no  lawyer  will 
undertake  to  controvert,  that  the  effect  of  such  a  construc- 
tion is  not  merely  to  give  weight  to  an  argument,  but  to  fix 
an  interpretation.  And  accordingly  it  will  be  found  by 
looking  into  the  books  written  by  those  who  were  conver- 
sant with  this  subject  that  they  have  so  considered  and 
received  it.  I  beg  leave  to  refer  to  the  most  eminent  of  all 
the  commentators  on  American  law,  and  to  read  a  line  or 
two  from  Chancellor  Kent's  Lectures,  found  in  the  first 
volmne,  page  310,  marginal  paging.  After  considering  this 
subject,  —  and,  it  should  be  noted  in  reference  to  this  very 
learned  and  experienced  jurist,  considering  it  in  an  unfa- 
vorable light,  because  he  himself  thought  that  as  an  original 
question  it  had  better  have  been  settled  the  other  way,  that 
it  would  have  been  more  logical,  more  in  conformity  with 
his  views  of  what  the  practical  needs  of  the  Government 
were,  that  the  Senate  should  participate  with  the  President 
in  the  power  of  removal,  —  nevertheless  he  sums  it  all  up  in 
these  words: 


DEFENSE  OF  PRESIDENT  JOHNSON  223 

This  amounted  to  a  legislative  construction  of  the  Constitution, 
and  it  has  ever  since  been  acquiesced  in  and  acted  upon  as  of 
decisive  authority  in  the  case.  It  applies  equally  to  every  other 
officer  of  the  Government  appointed  by  the  President  and  Senate 
whose  term  of  duration  is  not  specially  declared.  It  is  supported 
by  the  weighty  reason  that  the  subordinate  officers  in  the  exec- 
utive department  ought  to  hold  at  the  pleasure  of  the  head  of 
that  department,  because  he  is  invested  generally  with  the  exec- 
utive authority,  and  every  participation  in  that  authority  by  the 
Senate  was  an  exception  to  a  general  principle,  and  ought  to  be 
taken  strictly.  The  President  is  the  great  responsible  officer  for 
the  faithful  execution  of  the  law,  and  the  power  of  removal  was 
incidental  to  that  duty,  and  might  often  be  requisite  to  fulfill  it. 

This,  I  believe,  will  be  found  to  be  a  fair  expression  of 
the  opinions  of  those  who  have  had  occasion  to  examine 
this  subject  in  their  closets  or  as  a  matter  of  speculation. 

In  this  case,  however,  the  President  of  the  United  States 
had  to  consider  not  merely  the  general  question  where  this 
power  was  lodged,  not  merely  the  effect  of  this  decision 
made  in  1789,  and  the  practice  of  the  Government  under 
it  since,  but  he  had  to  consider  a  particular  law,  the  pro- 
visions of  which  were  before  him,  and  might  have  an  appli- 
cation to  the  case  upon  which  he  felt  called  upon  to  act; 
and  it  is  necessary,  in  order  to  do  justice  to  the  President 
in  reference  to  this  matter,  to  see  what  the  theory  of  that 
law  is  and  what  its  operation  is  or  must  be,  if  any,  upon 
the  case  which  he  had  before  him;  namely,  the  case  of 
Mr.  Stanton. 

During  the  debate  in  1789  there  were  three  distinct 
theories  held  by  different  persons  in  the  House  of  Repre- 
sentatives. One  was  that  the  Constitution  had  lodged  the 
power  of  removal  with  the  President  alone;  another  was 
that  the  Constitution  had  lodged  that  power  with  the 
President,  acting  with  the  advice  and  consent  of  the  Senate; 
the  third  was  that  the  Constitution  had  lodged  it  nowhere, 
but  had  left  it  to  the  legislative  power,  to  be  acted  upon  in 
connection  with  the  prescription  of  the  tenure  of  office. 


224  THE  BRIEF 

The  last  of  these  theories  was  at  that  day  held  by  com- 
paratively few  persons.  The  first  two  received  not  only 
much  the  greatest  number  of  votes  but  much  the  greatest 
weight  of  reasoning  in  the  course  of  that  debate;  so  much 
so  that  when  this  subject  came  under  the  consideration  of 
the  Supreme  Court  of  the  United  States,  in  the  case  of 
Ex  parte  Hennan,  collaterally  only,  Mr.  Justice  Thomp- 
son, who  delivered  the  opinion  of  the  Court  on  that  occa- 
sion, says  that  it  has  never  been  doubted  that  the  Consti- 
tution had  lodged  the  power  either  in  the  President  alone 
or  in  the  President  and  Senate  —  certainly  an  inaccuracy; 
but  then  it  required  a  very  close  scrutiny  of  the  debates 
and  a  careful  examination  of  the  few  individual  opinions 
expressed  in  that  debate,  in  that  direction,  to  ascertain 
that  it  ever  had  been  doubted  that,  one  way  or  the  other, 
the  Constitution  settled  the  question. 

Nevertheless,  as  I  understand  it  —  I  may  be  mistaken  in 
this  —  but,  as  I  understand  it,  it  is  the  theory  of  this  law 
which  the  President  had  before  him,  that  both  these  opin- 
ions were  wrong;  that  the  Constitution  has  not  lodged  the 
power  anywhere;  that  it  has  left  it  as  an  incident  to  the 
legislative  power,  which  incident  may  be  controlled,  of 
course,  by  the  Legislature  itself,  according  to  its  own 
will;  because,  as  Chief  Justice  Marshall  somewhere  re- 
marks (and  it  is  one  of  those  profound  remarks  which  will 
be  found  to  have  been  carried  by  him  into  many  of  his 
decisions),  when  it  comes  to  a  question  whether  a  power 
exists,  the  particular  mode  in  which  it  may  be  exercised 
must  be  left  to  the  will  of  the  body  that  possesses  it;  and, 
therefore,  if  this  be  a  legislative  power,  it  was  very  appar- 
ent to  the  President  of  the  United  States,  as  it  had  been 
very  apparent  to  Mr.  Madison,  as  was  declared  by  him  in 
the  course  of  his  correspondence  with  Mr.  Coles,  which  is, 
no  doubt,  familiar  to  Senators,  that  if  this  be  a  legislative 
power  the  Legislature  may  lodge  it  in  the  Senate,  may  re- 


DEFENSE   OF   PRESIDENT   JOHNSON  225 

tain  it  in  the  whole  body  of  Congress,  the  two  Houses  of 
Congress,  or  may  give  it  to  the  House  of  Representatives. 
I  repeat,  the  President  had  to  consider  this  particular  law; 
and  that,  as  I  understand  it,  is  the  theory  of  that  law.  I 
do  not  undertake  to  say  it  is  an  unfounded  theory;  I  do 
not  undertake  to  say  that  it  may  not  be  maintained  success- 
fully; but  I  do  undertake  to  say  that  it  is  one  which  was 
originally  rejected  by  the  ablest  minds  that  had  this  sub- 
ject under  consideration  in  1789;  that,  whenever  the  ques- 
tion has  been  started  since,  it  has  had,  to  a  recent  period, 
very  few  advocates;  and  that  no  fair  and  candid  mind  can 
deny  that  it  is  capable  of  being  doubted  and  disbelieved 
after  examination.  It  may  be  the  truth,  after  all;  but  it  is 
not  a  truth  which  shines  with  such  clear  and  certain  light 
that  a  man  is  guilty  of  a  crime  because  he  does  not  see  it. 
The  President  not  only  had  to  consider  this  particular 
law,  but  he  had  to  consider  its  constitutional  application 
to  this  particular  case,  supposing  the  case  of  Mr.  Stanton 
to  be,  what  I  have  endeavored  to  argue  it  was  not,  within 
its  terms.  Let  us  assume,  then,  that  his  case  was  within 
its  terms;  let  us  assume  that  this  proviso,  in  describing  the 
cases  of  Secretaries,  described  the  case  of  Mr.  Stanton;  that 
Mr.  Stanton,  having  been  appointed  by  President  Lincoln 
in  January,  1862,  and  commissioned  to  hold  during  the 
pleasure  of  the  President,  by  force  of  this  law  acquired  a 
right  to  hold  this  office  against  the  will  of  the  President 
down  to  April,  1869.  Now,  there  is  one  thing  which  has 
never  been  doubted  under  the  Constitution,  is  incapable 
of  being  doubted,  allow  me  to  say,  and  that  is,  that  the 
President  is  to  make  the  choice  of  officers.  Whether,  having 
made  the  choice,  and  they  being  inducted  into  office,  they 
can  be  removed  by  him  alone,  is  another  question.  But  to 
the  President  alone  is  confided  the  power  of  choice.  In  the 
first  place,  he  alone  can  nominate.  When  the  Senate  has 
advised  the  nomination,  consented  to  the  nomination,  he  is 


226  THE  BRIEF 

not  bound  to  commission  the  officer.  He  has  a  second  op- 
portunity for  consideration,  and  acceptance  or  rejection  of 
the  choice  he  had  originally  made.  On  this  subject  allow  me 
to  read  from  the  opinion  of  Chief  Justice  Marshall,  in  the 
case  of  Marbury  vs.  Madison,  where  it  is  expressed  more 
clearly  than  I  can  express  it.  After  enumerating  the  differ- 
ent clauses  of  the  Constitution  which  bear  upon  this  sub- 
ject, he  says: 

These  are  the  clauses  of  the  Constitution  and  laws  of  the  United 
States  which  affect  this  part  of  the  case.  They  seem  to  con- 
template tliree  distinct  operations: 

1.  The  nomination.  This  is  the  sole  act  of  the  President,  and 
is  completely  voluntary. 

2.  The  appointment.  This  is  also  the  act  of  the  President,  and 
is  also  a  voluntary  act,  though  it  can  only  be  performed  by  and 
with  the  advice  and  consent  of  the  Senate. 

3.  The  commission.  To  grant  a  commission  to  a  person 
appointed  might,  perhaps,  be  deemed  a  duty  enjoined  by  the 
Constitution.  "He  shall,"  says  that  instrument,  *' commission  all 
the  officers  of  the  United  States."  (1  Cranch,  155.) 

He  then  goes  into  various  considerations  to  show  that 
it  is  not  a  duty  enjoined  by  the  Constitution;  that  it  is 
optional  with  him  whether  he  will  commission  even  after 
an  appointment  has  been  confirmed,  and  he  says: 

The  last  act  to  be  done  by  the  President  is  the  signature  of  the 
commission.  He  has  then  acted  on  the  advice  and  consent  of  the 
Senate  to  his  own  nomination.  The  time  for  deliberation  has  then 
passed.  He  has  decided.  His  judgment,  on  the  advice  and  con- 
sent of  the  Senate  concurring  with  his  nomination,  has  been  made, 
and  the  officer  is  appointed.    {Ibid.,  157.) 

The  choice,  then,  is  with  the  President.  The  action  of 
the  Senate  upon  that  choice  is  an  advisory  action  only  at  a 
particular  stage  after  the  nomination,  before  the  appoint- 
ment or  the  commission.  Now,  as  I  have  said  before,  Mr. 
Stanton  was  appointed  under  the  law  of  1789,  constituting 
the  War  Department,  and  in  accordance  with  that  law 


DEFENSE   OF   PRESIDENT   JOHNSON  227 

he  was  commissioned  to  hold  during  the  pleasure  of  the 
President.  President  Lincoln  had  said  to  the  Senate,  "I 
nominate  Mr.  Stanton  to  hold  the  office  of  Secretary  for 
the  Department  of  War  during  the  pleasure  of  the  Presi- 
dent." The  Senate  had  said,  "We  assent  to  Mr.  Stanton's 
holding  the  office  of  Secretary  for  the  Department  of  War 
during  the  pleasure  of  the  President."  What  does  this 
Tenure-of-Office  Law  say,  if  it  operates  on  the  case  of  Mr. 
Stanton?  It  says  Mr.  Stanton  shall  hold  office  against  the 
will  of  the  President,  contrary  to  the  terms  of  his  commis- 
sion, contrary  to  the  law  under  which  he  was  appointed, 
down  to  the  4th  of  April,  1869.  For  this  new,  fixed,  and  ex- 
tended term,  where  is  Mr.  Stanton's  commission.^  Who  has 
made  the  appointment?  Who  has  assented  to  it?  It  is  a 
legislative  commission;  it  is  a  legislative  appointment;  it 
is  assented  to  by  Congress  acting  in  its  legislative  capacity. 
The  President  has  had  no  voice  in  the  matter.  The  Senate, 
as  the  advisers  of  the  President,  have  had  no  voice  in  the 
matter.  If  he  holds  at  all,  he  holds  by  force  of  legislation, 
and  not  by  any  choice  made  by  the  President,  or  assented 
to  by  the  Senate.  And  this  was  the  case,  and  the  only  case, 
which  the  President  had  before  him,  and  on  which  he  was 
called  to  act. 

Now,  I  ask  Senators  to  consider  whether,  for  having 
formed  an  opinion  that  the  Constitution  of  the  United 
States  had  lodged  this  power  with  the  President  —  an 
opinion  which  he  shares  with  every  President  who  has  pre- 
ceded him,  with  every  Congress  which  has  preceded  the 
last;  an  opinion  formed  on  the  grounds  which  I  have  im- 
perfectly indicated;  an  opinion  which,  when  applied  to  this 
particular  case,  raises  the  difficulties  which  I  have  indicated 
here,  arising  out  of  the  fact  that  this  law  does  not  pursue 
either  of  the  opinions  which  were  originally  held  in  this 
Government,  and  have  occasionally  been  started  and  main- 
tained by  those  who  are  restless  under  its  administration; 


228  THE  BRIEF 

an  opinion  thus  supported  by  the  practice  of  the  Govern- 
ment from  its  origin  down  to  his  own  day,  —  is  he  to  be 
impeached  for  holding  that  opinion?  If  not,  if  he  might 
honestly  and  properly  form  such  an  opinion  under  the 
lights  which  he  had,  and  with  the  aid  of  the  advice  which 
we  shall  show  you  he  received,  then  is  he  to  be  impeached 
for  acting  upon  it  to  the  extent  of  obtaining  a  judicial  de- 
cision whether  the  executive  department  of  the  Govern- 
ment was  right  in  its  opinion,  or  the  legislative  department 
was  right  in  its  opinion?  Strangely  enough,  as  it  struck  me, 
the  honorable  Managers  themselves  say,  *'No;  he  is  not 
to  be  impeached  for  that.  I  beg  leave  to  read  a  passage 
from  the  argument  of  the  honorable  Manager  by  whom 
the  prosecution  was  opened: 

If  the  President  had  really  desired  solely  to  test  the  constitu- 
tionality of  the  law  or  his  legal  right  to  remove  Mr,  Stanton,  in- 
stead of  his  defiant  message  to  the  Senate  of  the  21st  of  February, 
informing  them  of  the  removal,  but  not  suggesting  this  purpose, 
which  is  thus  shown  to  be  an  afterthought,  he  would  have  said,  in 
substance:  "Gentlemen  of  the  Senate,  in  order  to  test  the  con- 
stitutionality of  the  law  entitled,  'An  act  regulating  the  tenure  of 
certain  civil  offices,'  which  I  verily  believe  to  be  unconstitutional 
and  void,  I  have  issued  an  order  of  removal  of  E.  M.  Stanton 
from  the  office  of  Secretary  of  the  Department  of  War.  I  felt 
myself  constrained  to  make  this  removal  lest  Mr.  Stanton  should 
answer  the  information  in  the  nature  of  a  quo  warranto,  which  I 
intend  the  Attorney- General  shall  file  at  an  early  day,  by  saying 
that  he  holds  the  office  of  Secretary  of  War  by  the  appointment 
and  authority  of  Mr.  Lincoln,  which  has  never  been  revoked. 
Anxious  that  there  shall  be  no  collision  or  disagreement  between 
the  several  departments  of  the  Government  and  the  Executive, 
I  lay  before  the  Senate  this  message,  that  the  reasons  for  my 
action,  as  well  as  the  action  itself,  for  the  purpose  indicated,  may 
meet  your  concurrence." 

Thus  far  are  marks  of  quotation  showing  the  communi- 
cation which  the  President  should  have  obtained  from  the 
honorable  Manager  and  sent  to  the  Senate  in  order  to 
make  this  matter  exactly  right.    Then  follows  this: 


DEFENSE   OF   PRESIDENT  JOHNSON  229 

Had  the  Senate  received  such  a  message,  the  Representatives 
of  the  people  might  never  have  deemed  it  necessary  to  impeach 
the  President  for  such  an  act  to  insure  the  safety  of  the  country, 
even  if  they  had  denied  the  accuracy  of  his  legal  positions. 

So  that  it  seems  that  it  is,  after  all,  not  the  removal  of 
Mr.  Stanton  but  the  manner  in  which  the  President  com- 
municated the  fact  of  that  removal  to  the  Senate  after  it 
was  made.  That  manner  is  called  here  the  "defiant  mes- 
sage'* of  the  21st  of  February.  That  is  a  question  of  taste. 
I  have  read  the  message  as  you  all  have  read  it.  If  you  can 
find  anything  in  it  but  what  is  decorous  and  respectful  to 
this  body  and  to  all  concerned,  your  taste  will  differ  from 
mine.  But  whether  it  be  a  point  of  manners  well  or  ill  taken, 
one  thing  seems  to  be  quite  clear:  that  the  President  is  not 
impeached  here  because  he  entertained  an  opinion  that  this 
law  was  unconstitutional;  he  is  not  impeached  here  because 
he  acted  on  that  opinion  and  removed  Mr.  Stanton;  but  he 
is  impeached  here  because  the  House  of  Representatives 
considers  that  this  honorable  body  was  addressed  by  a 
"defiant  message,"  when  they  should  have  been  addressed 
in  the  terms  which  the  honorable  Manager  has  dictated. 

I  now  come,  Mr.  Chief  Justice  and  Senators,  to  another 
topic  connected  with  this  matter  of  the  removal  of  Mr. 
Stanton  and  the  action  of  the  President  under  this  law. 
The  honorable  Managers  take  the  ground,  among  others, 
that  whether  upon  a  true  construction  of  this  Tenure-of- 
Office  Act  Mr.  Stanton  be  within  it,  or  even  if  you  should 
believe  that  the  President  thought  the  law  unconstitutional 
and  had  a  right,  if  not  trammeled  in  some  way,  to  try  that 
question,  still  by  his  own  conduct  and  declarations  the 
President,  as  they  phrase  it,  is  estopped.  He  is  not  to  be 
permitted  here  to  assert  the  true  interpretation  of  this  law; 
he  is  not  to  be  permitted  to  allege  that  his  purpose  was  to 
raise  a  question  concerning  its  constitutionality;  and  the 
reason  is  that  he  has  done  and  said  certain  things.   All  of 


230  THE  BRIEF 

us  who  have  read  law  books  know  that  there  is  in  the  com- 
mon law  a  doctrine  called  rules  of  estoppel,  founded,  un- 
doubtedly, on  good  reason,  although,  as  they  are  called 
from  the  time  of  Lord  Coke,  or  even  earlier,  down  to  the 
present  day,  odious,  because  they  shut  out  the  truth. 
Nevertheless  there  are  circumstances  when  it  is  proper  that 
the  truth  should  be  shut  out.  What  are  the  circumstances? 
They  are  where  a  question  of  private  right  is  involved, 
where  on  a  matter  of  fact  that  private  right  depends,  and 
where  one  of  the  parties  to  the  controversy  has  so  con- 
ducted himself  that  he  ought  not  in  good  conscience  to  be 
allowed  either  to  assert  or  deny  that  matter  of  fact. 

But  did  any  one  ever  hear  of  an  estoppel  on  a  matter  of 
law.f*  Did  any  one  ever  hear  that  a  party  had  put  himself 
into  such  a  condition  that  when  he  came  into  a  court  of 
justice  even  to  claim  a  private  right,  he  could  not  ask  the 
judge  correctly  to  construe  a  statute,  and  insist  on  the  con- 
struction when  it  was  arrived  at  in  his  favor?  Did  any- 
body ever  hear,  last  of  all,  that  a  man  was  convicted  of 
crime  by  reason  of  an  estoppel  under  any  system  of  law 
that  ever  prevailed  in  any  civilized  State?  That  the  Presi- 
dent of  the  United  States  should  be  impeached  and  re- 
moved from  office,  not  by  reason  of  the  truth  of  his  case, 
but  because  he  is  estopped  from  telling  it,  would  be  a 
spectacle  for  gods  and  men.  Undoubtedly  it  would  have  a 
place  in  history,  which  it  is  not  necessary  for  me  to  attempt 
to  foreshadow. 

There  is  no  matter  of  fact  here.  They  have  themselves 
put  in  Mr.  Stanton's  commission,  which  shows  the  date  of 
the  commission  and  the  terms  of  the  commission;  and  that 
is  the  whole  matter  of  fact  which  is  involved.  The  rest  is 
the  construction  of  the  tenure  of  the  Tenure-of -Office  Act 
and  the  application  of  it  to  the  case,  which  they  have  thus 
made  themselves;  and  also  the  construction  of  the  Con- 
stitution of  the  United  States,  and  the  abstract  public 


DEFENSE   OF  PRESIDENT   JOHNSON  231 

question  whether  that  has  lodged  the  power  of  removal 
with  the  President  alone,  or  with  the  President  and  Sen- 
ate, or  left  it  to  Congress.  I  respectfully  submit,  there- 
fore, that  the  ground  is  untenable  that  there  can  be  an 
estoppel  by  any  conduct  of  the  President,  who  comes  here 
to  assert  not  a  private  right,  but  a  great  public  right  con- 
fided to  the  office  by  the  people,  in  which,  if  anybody  is 
estopped,  the  people  will  be  estopped.  The  President  never 
could  do  or  say  anything  which  would  put  this  great  public 
right  into  that  extraordinary  predicament. 

But  what  has  he  done?  What  are  the  facts  upon  which 
they  rely,  out  of  which  to  work  this  estoppel,  as  they  call 
it.f*  In  the  first  place,  he  sent  a  message  to  the  Senate  on  the 
12th  of  December,  1867,  in  which  he  informed  the  Senate 
that  he  had  suspended  Mr.  Stanton  by  a  certain  order,  a 
copy  of  which  he  gave;  that  he  had  appointed  General 
Grant  to  exercise  the  duties  of  the  office  ad  interim  by  a 
certain  other  order,  a  copy  of  which  he  gave;  and  then  he 
entered  into  a  discussion  in  which  he  showed  the  existence 
of  this  question,  whether  Mr.  Stanton  was  within  the 
Tenure-of -Office  Bill;  the  existence  of  the  other  question, 
whether  this  was  or  was  not  a  constitutional  law;  and  then 
he  invoked  the  action  of  the  Senate.  There  was  nothing 
misrepresented.  There  was  nothing  concealed  which  he 
was  bound  to  state.  It  is  complained  of  by  the  honorable 
Managers  that  he  did  not  tell  the  Senate  that,  if  their  action 
should  be  such  as  to  restore  Mr.  Stanton  practically  to  the 
possession  of  the  office,  he  should  go  to  law  about  it.  That 
is  the  complaint:  that  he  did  not  tell  that  to  the  Senate. 
It  may  have  been  a  possible  omission,  though  I  rather 
think  not.  I  rather  think  that  that  good  taste  which  is  so 
prevalent  among  the  Managers,  and  which  they  so  insist 
upon  here,  would  hardly  dictate  that  the  President  should 
have  held  out  to  the  Senate  something  which  might  possi- 
bly have  been  construed  into  a  threat  upon  that  subject. 


232  THE  BRIEF 

He  laid  the  case  before  the  Senate  for  their  action;  and 
now,  forsooth,  they  say  he  was  too  deferential  to  this  law, 
both  by  reason  of  this  conduct  of  his,  and  also  what  he  did 
upon  other  occasions,  to  which  I  shall  presently  advert. 

Senators,  there  is  no  inconsistency  in  the  President's 
position  or  conduct  in  reference  to  this  matter.  Suppose 
this  case :  a  party  who  has  a  private  right  in  question  sub- 
mits to  the  same  tribunal  in  the  same  proceeding  these 
questions:  jfirst,  I  deny  the  constitutionality  of  the  law 
under  which  the  right  is  claimed  against  me;  second,  I 
assert  that  the  true  interpretation  of  that  law  will  not 
affect  this  right  which  is  claimed  against  me;  third,  I  insist 
that,  even  if  it  is  within  the  law,  I  make  a  case  within  the 
law  —  is  there  any  inconsistency  in  that?  Is  not  that  done 
every  day,  or  something  analogous  to  it,  in  courts  of  jus- 
tice? And  where  was  the  inconsistency  on  this  occasion? 
Suppose  the  President  had  summed  up  the  message  which 
he  sent  to  the  Senate  in  this  way:  "Gentlemen  of  the  Sen- 
ate, I  insist,  in  the  first  place,  that  this  law  is  unconsti- 
tutional; I  insist,  in  the  second  place,  that  Mr.  Stanton 
is  not  within  it;  I  respectfully  submit  for  your  considera- 
tion whether,  if  it  be  a  constitutional  law  and  Mr.  Stan- 
ton's case  be  within  it,  the  facts  which  I  present  to  you 
do  not  make  such  a  case  that  you  will  not  advise  me  to 
receive  him  back  into  office."  Suppose  he  had  summed  up 
in  that  way,  would  there  have  been  any  inconsistency  then? 
And  why  is  not  the  substance  of  that  found  in  this  mes- 
sage? Here  it  is  pointed  out  that  the  question  existed 
whether  the  law  was  unconstitutional;  here  it  is  pointed 
out  that  the  question  existed  whether  Mr.  Stanton  was 
within  the  law;  and  then  the  President  goes  on  to  submit 
for  the  consideration  of  the  Senate,  who  he  had  reason  to 
believe,  and  did  believe,  thought  the  law  was  constitutional, 
though  he  had  no  reason  to  believe  that  they  thought  Mr. 
Stanton  was  within  the  law,  the  facts  to  be  acted  upon 


DEFENSE   OF   PRESIDENT   JOHNSON  233 

within  the  law,  if  the  case  was  there.  It  seems  the  Presi- 
dent has  not  only  been  thus  anxious  to  avoid  a  collision 
with  this  law;  he  has  not  only  on  this  occasion  taken  this 
means  to  avoid  it,  but  it  seems  that  he  ha^  actually  in  some 
particulars  obeyed  the  law;  he  has  made  changes  in  the 
commissions,  or  rather  they  have  been  made  in  the  depart- 
ments, and,  as  he  has  signed  the  commissions,  I  suppose 
they  must  be  taken,  although  his  attention  does  not  appear 
to  have  been  called  to  the  subject  at  all,  to  have  been  made 
with  his  sanction,  just  so  far,  and  because  he  sanctions  that 
which  is  done  by  his  Secretaries,  if  he  does  not  interfere 
actively  to  prevent  it. 

He  has  done  not  merely  this,  but  he  has  also  in  several 
cases  —  four  cases :  three  collectors,  and  one  consul,  I  think 
they  are  —  sent  into  the  Senate  notice  of  suspension,  notice 
that  he  had  acted  under  this  law  and  suspended  these 
officers.  This  objection  proceeds  upon  an  entire  mis- 
apprehension of  the  position  of  the  President  and  of  the 
views  which  he  has  of  his  own  duty.  It  assumes  that  be- 
cause, when  the  emergency  comes,  as  it  did  come  in  the 
case  of  Mr.  Stanton,  when  he  must  act  or  else  abandon  a 
power  which  he  finds  in  the  particular  instance  it  is  neces- 
sary for  him  to  insist  upon  in  order  to  carry  on  the  Govern- 
ment; that  because  he  holds  that  opinion  he  must  run 
amuck  against  the  law,  and  take  every  possible  opportu- 
nity to  give  it  a  blow,  if  he  can.  He  holds  no  such  opinion. 

So  long  as  it  is  a  question  of  administrative  duty  merely, 
he  holds  that  he  is  bound  to  obey  the  law.  It  is  only  when 
the  emergency  arises,  when  the  question  is  put  to  him  so 
that  he  must  answer  it,  "Can  you  carry  on  this  depart- 
ment of  the  Government  any  longer  in  this  way.^*"  "No." 
"Have  you  power  to  carry  it  on  as  the  public  service  de- 
mands?'* "I  believe  I  have."  Then  comes  the  question 
how  he  shall  act.  But  whether  a  consul  is  to  be  suspended 
or  removed,  whether  a  defaulting  collector  is  to  be  sus- 


234  THE  BRIEF 

pended  or  removed,  does  not  involve  the  execution  of  the 
great  powers  of  the  Government.  It  may  be  carried  on;  he 
may  be  of  opinion  with  less  advantage;  he  may  be  of  opinion 
not  in  accordance  with  the  requirements  of  the  Constitu- 
tion, but  it  may  be  carried*  on  without  serious  embarrass- 
ment or  diflSculty.  Until  that  question  is  settled  he  does  not 
find  it  necessary  to  make  it  —  settled  in  some  way,  by  some 
person  who  has  an  interest  to  raise  and  have  it  settled. 

I  wish  to  observe,  also  (the  correctness  of  which  observa- 
tion I  think  the  Senate  will  agree  with),  that  these  changes 
which  have  been  made  in  the  forms  of  the  commissions 
really  have  nothing  to  do  with  this  subject;  for  instance, 
the  change  is  made  in  the  Department  of  State,  **  subject 
to  the  conditions  prescribed  by  law."  That  is  the  tenure  on 
which  I  think  all  commissions  should  originally  have  run, 
and  ought  to  continue  to  run.  It  is  general  enough  to  em- 
brace all.  If  it  is  a  condition  prescribed  by  law  that  the 
Senate  must  consent  to  the  removal  of  the  incumbent  be- 
fore he  is  rightfully  out  of  office,  it  covers  that  case.  If  the 
Tenure-of -Office  Bill  be  not  a  law  of  the  land  because  it  is 
not  in  accordance  with  the  Constitution,  it  covers  that 
case.  It  covers  every  case  necessarily  from  its  terms,  for 
every  officer  does,  and  should,  and  must  hold  subject  to  the 
conditions  prescribed  by  law  —  not  necessarily  a  law  of 
Congress,  but  a  law  of  the  land  —  the  Constitution  being 
supreme  in  that  particular. 

There  is  another  observation,  also,  and  that  is,  that  the 
change  that  was  made  in  the  Department  of  the  Treasury 
—  "until  a  successor  be  appointed  and  qualified"  —  has 
manifestly  nothing  whatever  to  do  with  the  subject  of  re- 
moval. Whether  the  power  of  removal  be  vested  in  the 
President  alone,  or  vested  in  the  President  by  and  with  the 
advice  and  consent  of  the  Senate,  this  clause  does  not  touch 
it.  It  is  just  as  inconsistent  with  removal  by  the  President 
with  the  consent  of  the  Senate  as  it  is  inconsistent  with  the 


DEFENSE  OF   PRESIDENT  JOHNSON  235 

removal  by  the  President  alone.  In  other  words,  it  is  the 
general  tenure  of  the  office  which  is  described,  according 
to  which  the  officer  is  to  continue  to  hold;  but  he  and  all 
other  officers  hold  subject  to  some  power  of  removal  vested 
somewhere,  and  this  change  which  has  been  made  in  the 
commission  does  not  declare  where  it  is  vested,  nor  has  it 
any  influence  on  the  question  in  whom  it  is  vested. 

I  wish  to  add  to  this,  that  there  is  nothing,  so  far  as  I  see, 
on  this  subject  of  estoppel,  growing  out  of  the  action  of  the 
President,  either  in  sending  the  message  to  the  Senate  of 
the  12th  of  December,  or  in  the  changes  in  the  commissions, 
or  in  his  sending  to  the  Senate  notices  of  suspensions  of 
different  officers,  which  has  any  bearing  whatever  upon  the 
Tenure-of-Office  Act  as  affecting  the  case  of  Mr.  Stanton. 
That  is  a  case  that  stands  by  itself.  The  law  may  be  a  con- 
stitutional law;  it  may  not  only  be  a  law  under  which  the 
President  has  acted  in  this  instance,  but  under  which  he 
is  bound  to  act,  and  is  wilhng  to  act,  if  you  please,  in  every 
instance;  still,  if  Mr.  Stanton  is  not  within  that  law,  the 
case  remains  as  it  was  originally  presented,  and  that  case  is, 
that,  not  being  within  that  law,  the  first  article  is  entirely 
without  foundation.  .  .  . 

Mr.  Chief  Justice  and  Senators,  among  the  points  which 
I  accidentally  omitted  to  notice  yesterday,  was  one  to  which 
it  seems  to  me  of  sufficient  importance  to  return,  and  for  a 
few  moments  to  ask  the  attention  of  the  Senate  to  it.  It 
will  best  be  exhibited  by  reading  from  Saturday's  proceed- 
ings a  short  passage.  In  the  course  of  those  proceedings 
Mr.  Manager  Butler  said: 

It  will  be  seen,  therefore,  Mr.  President  and  Senators,  that  the 
President  of  the  United  States  says  in  his  answer  that  he  sus- 
pended Mr.  Stanton  under  the  Constitution,  indefinitely  and  at 
his  pleasure.  I  propose,  now,  unless  it  be  objected  to,  to  show 
that  that  is  false  under  his  own  hand,  and  I  have  his  letter  to 
that  effect,  which,  if  there  is  no  objection,  I  will  read,  the  sig- 
nature of  which  was  identified  by  C.  E.  Creecy. 


236  THE  BRIEF 

Then  followed  the  reading  of  the  letter,  which  was  this : 

Executive  Mansion, 
Washington,  D.C,  August  14,  1867. 

Sir:  In  compliance  with  the  requirements  of  the  eighth  section 
of  the  act  of  Congress  of  March  2,  1867,  entitled  "An  act  regu- 
lating the  tenure  of  certain  civil  offices,"  you  are  hereby  notified 
that  on  the  12th  instant  Hon.  Edwin  M.  Stanton  was  suspended 
from  office  as  Secretary  of  War  and  General  Ulysses  S.  Grant 
authorized  and  empowered  to  act  as  Secretary  of  War  ad  interim, 
I  am,  sir,  very  respectfully,  yours, 

Andrew  Johnson. 

This  is  the  letter  which  was  to  show,  under  the  hand  of 
the  President,  that  when  he  said  in  his  answer  he  did  not 
suspend  Mr.  Stanton  by  virtue  of  the  Tenure-of -Office  Act 
that  statement  was  a  falsehood.  Allow  me  now  to  read  the 
eighth  section  of  that  act: 

That  whenever  the  President  shall,  without  the  advice  and 
consent  of  the  Senate,  designate,  authorize,  or  employ  any  person 
to  perform  the  duties  of  any  office  he  shall  forthwith  notify  the 
Secretary  of  the  Treasury  thereof;  and  it  shall  be  the  duty  of  the 
Secretary  of  the  Treasury  thereupon  to  communicate  such  notice 
to  all  the  proper  accounting  and  disbursing  officers  of  his  Depart- 
ment. 

The  Senate  will  perceive  that  this  section  has  nothing  to 
do  with  the  suspension  of  an  officer  and  no  description  of 
what  suspensions  are  to  take  place;  but  the  purpose  of  the 
section  is  that  if  in  any  case  the  President,  without  the 
advice  and  consent  of  the  Senate,  shall,  under  any  circum- 
stances, designate  a  third  person  to  perform  temporarily 
the  duties  of  an  office,  he  is  to  make  a  report  of  that  designa- 
tion to  the  Secretary  of  the  Treasury,  and  that  officer  is  to 
give  the  necessary  information  of  the  event  to  his  subor- 
dinate officers.  The  section  applies  in  terms  to  and  in- 
cludes all  cases.  It  applies  to  and  includes  cases  of  designa- 
tion on  account  of  sickness  or  absence  or  resignation  or  any 


DEFENSE   OF   PRESIDENT   JOHNSON  237 

cause  of  vacancy,  whether  temporary  or  permanent,  and 
whether  occurring  by  reason  of  a  suspension  or  of  a  removal 
from  office.  And  therefore,  when  the  President  says  to  the 
Secretary  of  the  Treasury,  "I  give  you  notice  that  I  have 
designated  General  Thomas  to  perform  the  duties  ad  in- 
terim of  Secretary  of  War,"  he  makes  no  allusion,  by  force 
of  that  letter,  to  the  manner  in  which  that  vacancy  has 
occurred  or  the  authority  by  which  it  has  been  created;  and 
hence,  instead  of  this  letter  showing,  under  the  President's 
own  hand,  that  he  had  stated  a  falsehood,  it  has  no  refer- 
ence to  the  subject-matter  of  the  power  or  the  occasion  of 
Mr.  Stanton's  removal. 

Mr.  Manager  Butler.  Read  the  second  section,  please; 
the  first  clause  of  it. 

Mr.  Curtis.  What  did  the  Manager  call  for? 

Mr.  Manager  Butler.  Read  the  first  clause  of  the  sec- 
ond section  of  the  act,  which  says  that  in  no  other  case 
except  when  he  suspends  shall  he  appoint. 

Mr.  Curtis.  The  second  section  provides: 

That  when  any  officer  appointed  as  aforesaid,  excepting  judges 
of  the  United  States  courts,  shall,  during  a  recess  of  the  Senate,  be 
shown  by  satisfactory  evidence,  etc. 

The  President  is  allowed  to  suspend  such  an  officer.  Now, 
the  President  states  in  his  answer  that  he  did  not  act  under 
that  section. 

Mr.  Manager  Butler.  That  is  not  reading  the  section. 
That  is  not  what  I  desired. 

Mr.  Curtis.  I  am  aware  that  is  not  reading  the  section, 
Mr.  Manager.  You  need  not  point  that  out.  It  is  a  very 
long  section,  and  I  do  not  propose  to  read  it. 

Mr.  Manager  Butler.  The  first  half  a  dozen  lines. 

Mr.  Curtis.  This  section  authorizes  the  President  to 
suspend  in  cases  of  crime  and  other  cases  which  are  de- 
scribed in  this  section.   By  force  of  it  the  President  may 


238  THE  BRIEF 

suspend  an  officer.  This  eighth  section  applies  to  all  cases 
of  temporary  designations  and  appointments,  whether  re- 
sulting from  suspensions  under  the  second  section,  whether 
arising  from  temporary  absence  or  sickness  or  death  or 
resignation;  no  matter  what  the  cause  may  be,  if  for  any 
reason  there  is  a  temporary  designation  of  a  person  to 
supply  an  office  ad  interim,  notice  is  to  be  given  to  the 
Secretary  of  the  Treasury;  and  therefore  I  repeat,  Sena- 
tors, that  the  subject-matter  of  this  eighth  section  and  the 
letter  which  the  President  wrote  in  consequence  of  it  have 
no  reference  to  the  question  under  what  authority  he  sus- 
pended Mr.  Stanton. 

I  now  ask  the  attention  of  the  Senate  to  the  second 
article  in  the  series;  and  I  will  begin  as  I  began  before,  by 
stating  what  the  substance  of  this  article  is,  what  allega- 
tions it  makes,  so  as  to  be  the  subjects  of  proof,  and  then 
the  Senate  will  be  prepared  to  see  how  far  each  one  of  these 
allegations  is  supported  by  what  is  already  in  the  case,  and  I 
shall  be  enabled  to  state  what  we  propose  to  offer  by  way  of 
proof  in  respect  to  each  of  them.  The  substantive  allega- 
tions of  this  second  article  are  that  the  delivery  of  the  letter 
of  authority  to  General  Thomas  was  without  authority  of 
law;  that  it  was  an  intentional  violation  of  the  Tenure-of- 
Office  Act;  that  it  was  an  intentional  violation  of  the  Con- 
stitution of  the  United  States;  that  the  delivery  of  this  order 
to  General  Thomas  was  made  with  intent  to  violate  both 
that  act  and  the  Constitution  of  the  United  States.  That 
is  the  substance  of  the  second  article.  The  Senate  will  at 
once  perceive  that  if  the  suspension  of  Mr.  Stanton  was  not 
a  violation  of  the  Tenure-of -Office  Act  in  point  of  fact,  or, 
to  state  it  in  other  terms,  if  the  case  of  Mr.  Stanton  is  not 
within  the  act,  then  his  removal,  if  he  had  been  removed, 
could  not  be  a  violation  of  the  act. 

If  his  case  is  not  within  the  act  at  all,  if  the  act  does  not 
apply  to  the  case  of  Mr.  Stanton,  of  course  his  removal  is 


DEFENSE   OF   PRESIDENT   JOHNSON  239 

not  a  violation  of  that  act.  If  Mr.  Stanton  continued  to 
hold  under  the  commission  which  he  received  from  Presi- 
dent Lincoln,  and  his  tenure  continued  to  be  under  the  act 
of  1789,  and  under  his  only  commission,  which  was  at  the 
pleasure  of  the  President,  it  was  no  violation  of  the  Tenure- 
of -Office  Act  for  Mr.  Johnson  to  remove,  or  attempt  to  re- 
move, Mr.  Stanton;  and  therefore  the  Senate  will  perceive 
that  it  is  necessary  to  come  back  again,  to  recur  under  this 
article,  as  it  will  be  necessary  to  recur  under  the  whole  of 
the  first  eight  articles,  to  the  inquiries,  first,  whether  Mr. 
Stanton's  case  was  within  the  Tenure-of -Office  Act;  and 
secondly,  whether  it  was  so  clearly  and  plainly  within  that 
act  that  it  can  be  attributed  to  the  President  as  a  high  mis- 
demeanor that  he  construed  it  not  to  include  his  case.  But 
suppose  the  case  of  Mr.  Stanton  is  within  the  Tenure-of- 
Office  Act,  still  the  inquiry  arises,  whether  what  was  done 
in  delivering  this  letter  of  authority  to  General  Thomas  was 
a  violation  of  that  act;  and  that  renders  it  necessary  that 
I  should  ask  your  careful  attention  to  the  general  subject- 
matter  of  this  act  and  the  particular  provisions  which  are 
inserted  in  it  in  reference  to  each  of  those  subjects. 

Senators  will  recollect  undoubtedly  that  this  law,  as  it 
was  finally  passed,  differs  from  the  bill  as  it  was  originally 
introduced.  The  law  relates  to  two  distinct  subjects.  One 
is  removal  from  office,  the  other  subject  is  appointments  of 
a  certain  character  made  under  certain  circumstances  to 
fill  offices.  It  seems  that  a  practice  had  grown  up  under  the 
Government  that  where  a  person  was  nominated  to  the 
Senate  to  fill  an  office,  and  the  Senate  either  did  not  act  on 
his  nomination  during  their  session  or  rejected  the  nomina- 
tion, after  the  adjournment  of  the  Senate  and  in  the  recess 
it  was  considered  competent  for  the  President  by  a  tem- 
porary commission  to  appoint  that  same  person  to  that 
same  office;  and  that  was  deemed  by  many  Senators,  un- 
questionably by  a  majority,  and  I  should  judge  from  read- 


240  THE  BRIEF 

ing  the  debates  by  a  large  majority  of  the  Senate,  to  be  an 
abuse  of  power  —  not  an  intentional  abuse.  But  it  was  a 
practice  which  had  prevailed  under  the  Government  to  a 
very  considerable  extent.  It  was  not  limited  to  very  recent 
times.  It  had  been  supported  by  the  opinions  of  different 
Attorneys-General  given  to  different  Presidents.  But  still 
it  was  considered  by  many  Senators  to  be  a  departure  from 
the  spirit  of  the  Constitution,  and  a  substantial  derogation 
from  the  just  power  of  the  Senate  in  resi>ect  to  nominations 
for  office.  That  being  so,  it  will  be  found  on  an  examination 
of  this  law  that  the  first  and  second  sections  of  the  act 
relate  exclusively  to  removals  from  office  and  temporary 
suspensions  in  the  recess  of  the  Senate;  while  the  third 
section  and  several  of  the  following  sections,  to  which  I 
shall  ask  your  particular  attention,  relate  exclusively  to 
this  other  subject  of  appointments  made  to  office  after 
the  Senate  had  refused  to  concur  in  the  nomination  of 
the  person  appointed.  Allow  me  now  to  read  from  the 
third  section: 

That  the  President  shall  have  power  to  fill  all  vacancies  which 
may  happen  during  the  recess  of  the  Senate,  by  reason  of  death 
or  resignation  — 

I  pause  here  to  remark  that  this  does  not  include  all 
cases.  It  does  not  include  any  case  of  the  expiration  of  a 
commission.  It  includes  simply  death  and  resignation,  not 
cases  of  the  expiration  of  a  commission  during  the  recess  of 
the  Senate.  Why  these  were  thus  omitted  I  do  not  know; 
but  it  is  manifest  that  the  law  does  not  affect  to,  and  in 
point  of  fact  does  not,  cover  all  cases  which  might  arise 
belonging  to  this  general  class  to  which  this  section  was 
designed  to  refer. 

The  law  goes  on  to  say  — 

That  the  President  shall  have  power  to  fill  all  vacancies  which 
may  happen  during  the  recess  of  the  Senate,  by  reason  of  death 
or  resignation,  by  granting  commissions  which  shall  expire  at  the 


DEFENSE  OF  PRESIDENT  JOHNSON  241 

end  of  their  next  session  thereafter.  And  if  no  appointment,  by 
and  with  the  advice  and  consent  of  the  Senate,  shall  be  made  to 
such  office  so  vacant  or  temporarily  filled  as  aforesaid  during  such 
next  session  of  the  Senate,  such  office  shall  remain  in  abeyance, 
without  any  salary,  fees,  or  emoluments  attached  thereto,  until 
the  same  shall  be  filled  by  appointment  thereto,  by  and  with  the 
advice  and  consent  of  the  Senate;  and  during  such  time  all  the 
powers  and  duties  belonging  to  such  office  shall  be  exercised  by 
such  other  officer  as  may  by  law  exercise  such  powers  and  duties 
in  case  of  a  vacancy  in  such  office. 

Here  all  the  described  vacancies  in  oflSce  occurring  during 
the  recess  of  the  Senate  and  the  failure  to  fill  those  vacan- 
cies in  accordance  with  the  advice  of  the  Senate  are  treated 
as  occasioning  an  abeyance  of  such  oflfices.  That  applies,  as 
I  have  said,  to  two  classes  of  cases,  vacancies  happening 
by  reason  of  death  or  resignation.  It  does  not  apply  to  any 
other  vacancies. 

The  next  section  of  this  law  does  not  relate  to  this  subject 
of  filling  oflSces,  but  to  the  subject  of  removals: 

That  nothing  in  this  act  contained  shall  be  construed  to  extend 
the  term  of  any  office  the  duration  of  which  is  limited  by  law. 

The  fifth  section  is : 

That  if  any  person  shall,  contrary  to  the  provisions  of  this  act, 
accept  any  appointment  to  or  employment  in  any  office,  or  shall 
hold  or  exercise,  or  attempt  to  hold  or  exercise,  any  such  office 
or  employment,  he  shall  be  deemed,  and  is  hereby  declared  to  be, 
guilty  of  a  high  misdemeanor,  and,  upon  trial  and  conviction 
thereof,  he  shall  be  punished  therefor  by  a  fine  not  exceeding 
ten  thousand  dollars,  or  by  imprisonment,  etc. 

Any  person  who  shall,  "contrary  to  the  provisions  of  this 
act,"  accept  any  appointment.  What  are  the  "provisions 
of  this  act"  in  respect  to  accepting  any  appointment? 
They  are  found  in  the  third  section  of  the  act  putting  cer- 
tain oflfices  in  abeyance  under  the  circumstances  which  are 
described  in  that  section.  If  any  person  does  accept  an 
oflfice  which  is  thus  put  into  abeyance,  or  any  employment 


242  THE  BRIEF 

or  authority  in  respect  to  such  office,  he  comes  within  the 
penal  provisions  of  the  fifth  section;  but  outside  of  that 
there  is  no  such  thing  as  accepting  an  office  contrary  to  the 
provisions  of  the  act,  because  the  provisions  of  the  act,  in 
respect  to  fiUing  offices,  extend  no  further  than  to  these 
cases;  and  so,  in  the  next  section,  it  is  declared: 

That  every  removal,  appointment,  or  employment  made,  had, 
or  exercised  contrary  to  the  provisions  of  this  act,  and  the  mak- 
ing, signing,  sealing,  countersigning,  or  issuing  of  any  commission 
or  letter  of  authority  for  or  in  respect  to  any  such  appointment  or 
employment,  shall  be  deemed,  and  are  hereby  declared  to  be, 
high  misdemeanors,  etc. 

Here,  again,  the  making  of  a  letter  of  authority,  con- 
trary to  the  provisions  of  the  act,  can  refer  only  to  those 
cases  which  the  act  itself  has  described,  which  the  act  itseK 
has  prohibited;  and  any  other  cases  which  are  outside  of 
such  prohibition,  as  this  case  manifestly  is,  do  not  come 
within  its  provisions. 

The  stress  of  this  article,  however,  does  not  seem  to  me 
to  depend  at  all  upon  this  question  of  the  construction  of 
this  law,  but  upon  a  totally  different  matter,  which  I  agree 
should  be  fairly  and  carefully  considered.  The  important 
allegation  of  the  article  is  that  this  letter  of  authority  was 
given  to  General  Thomas  enabling  him  to  perform  the 
duties  of  Secretary  of  War  ad  interim  without  authority 
of  law;  that  I  conceive  to  be  the  main  inquiry  which  arises 
under  this  article,  provided  the  case  of  Mr.  Stanton  and 
his  removal  are  within  the  Tenure-of-Office  Bill  at  all. 

I  wish  first  to  bring  to  the  attention  of  the  Senate  the  Act 
of  1795,  which  is  found  in  1  Statutes-at-Large,  page  415. 
It  is  a  short  act,  and  I  will  read  the  whole  of  it: 

That  in  case  of  vacancy  in  the  office  of  Secretary  of  State, 
Secretary  of  the  Treasury,  or  of  the  Secretary  of  the  Department 
of  War,  or  of  any  officer  of  either  of  the  said  Departments,  whose 
appointment  is  not  in  the  head  thereof,  whereby  they  cannot  per- 


DEFENSE   OF   PRESIDENT   JOHNSON  243 

form  the  duties  of  their  said  respective  offices,  it  shall  be  lawful 
for  the  President  of  the  United  States,  in  case  he  shall  think  it 
necessary,  to  authorize  any  person  or  persons,  at  his  discretion, 
to  perform  the  duties  of  the  said  respective  offices  until  a  suc- 
cessor be  appointed  or  such  vacancy  be  filled:  Provided,  That  no 
one  vacancy  shall  be  supplied,  in  manner  aforesaid,  for  a  longer 
term  than  six  months. 

This  act,  it  has  been  suggested,  may  have  been  repealed 
by  the  Act  of  February  20,  1863,  which  is  found  in  12 
Statutes-at-Large,  page  Q5Q.  This  also  is  a  short  act,  and 
I  will  trespass  on  the  patience  of  the  Senate  by  reading  it: 

That  in  case  of  the  death,  resignation,  absence  from  the  seat  of 
Government,  or  sickness  of  the  head  of  any  executive  Depart- 
ment of  the  Government,  or  of  any  officer  of  either  of  the  said 
Departments  whose  appointment  is  not  in  the  head  thereof, 
whereby  they  cannot  perform  the  duties  of  their  respective 
offices,  it  shall  be  lawful  for  the  President  of  the  United  States,  in 
case  he  shall  think  it  necessary,  to  authorize  the  head  of  any  other 
executive  Department,  or  other  officer  in  either  of  said  Depart- 
ments whose  appointment  is  vested  in  the  President,  at  his  dis- 
cretion, to  perform  the  duties  of  the  said  respective  offices  until  a 
successor  be  appointed,  or  until  such  absence  or  inability  by  sick- 
ness shall  cease:  Provided,  That  no  one  vacancy  shall  be  supplied 
in  manner  aforesaid  for  a  longer  term  than  six  months. 

These  acts,  as  the  Senate  will  perceive,  although  they 
may  be  said  in  some  sense  to  relate  to  the  same  general 
subject-matter,  contain  very  different  provisions,  and  the 
later  law  contains  no  express  repeal  of  the  other.  If,  there- 
fore, the  later  law  operates  as  a  repeal,  it  is  only  as  a  repeal 
by  implication.  It  says  in  terms  that  "all  acts  and  parts 
of  acts  inconsistent  with  this  act  are  hereby  repealed.'* 
That  a  general  principle  of  law  would  say  if  the  statute  did 
not  speak  those  words.  The  addition  of  those  words  adds 
nothing  to  its  repealing  power.  The  same  inquiry  arises 
under  them  that  would  arise  if  they  did  not  exist,  namely, 
how  far  is  this  later  law  inconsistent  with  the  provisions  of 
the  earlier  law? 


244  THE  BRIEF 

There  are  certain  rules  which  I  shall  not  fatigue  the  Sen- 
ate by  citing  cases  to  prove,  because  every  lawyer  will  rec- 
ognize them  as  settled  rules  upon  this  subject. 

In  the  first  place  there  is  a  rule  that  repeals  by  implica- 
tion are  not  favored  by  the  courts.  This  is,  as  I  understand 
it,  because  the  courts  act  on  the  assumption  or  the  princi- 
ple that  if  the  Legislature  really  intended  to  repeal  the  law 
they  would  have  said  so;  not  that  they  necessarily  must 
say  so,  because  there  are  repeals  by  implication;  but  the 
presumption  is  that  if  the  Legislature  entertained  a  clear 
and  fixed  purpose  to  repeal  a  former  law  they  would  be 
likely  at  least  to  have  said  so;  and,  therefore,  the  rule  is  a 
settled  one  that  repeals  by  implication  are  not  favored  by 
the  courts.  Another  rule  is  that  the  repugnancy  between 
the  two  statutes  must  be  clear.  It  is  not  enough  that  under 
some  circumstances  one  may  possibly  be  repugnant  to  the 
other.  The  repugnancy,  as  the  language  of  the  books  is, 
between  the  two  must  be  clear,  and  if  the  two  laws  can 
stand  together  the  latter  does  not  impliedly  repeal  the 
former.  If  Senators  have  any  desire  to  recur  to  the  author- 
ities on  this  subject,  they  will  find  a  sufficient  number  of 
them  collected  in  Sedgwick  on  Statute  Law,  page  IW. 

Now,  there  is  no  repugnancy  whatsoever  between  these 
two  laws  that  I  can  perceive.  The  Act  of  1795  applies  to  all 
vacancies,  however  created.  The  Act  of  1863  applies  only 
to  vacancies,  temporary  or  otherwise,  occasioned  by  death 
and  resignation;  removals  from  office,  expiration  of  com- 
missions, are  not  included.  The  Act  of  1795  applies  only  to 
vacancies;  the  Act  of  1863  to  temporary  absences  or  sick- 
ness. The  subject-matter,  therefore,  of  the  law  is  different; 
there  is  no  inconsistency  between  them;  each  may  stand 
together  and  operate  upon  the  cases  to  which  each  applies; 
and  therefore  I  submit  that,  in  the  strictest  view  which 
may  ultimately  be  taken  of  this  subject,  it  is  not  prac- 
ticable to  maintain  that  the  later  law  here  repealed  alto- 


DEFENSE   OF  PRESIDENT  JOHNSON  245 

gether  the  Act  of  1795.  But,  whether  it  did  or  not,  I  state 
again  what  I  have  had  so  often  occasion  to  repeat  before, 
is  it  not  a  fair  question,  is  it  a  crime  to  be  on  one  side  of  that 
question  and  not  on  the  other?  Is  it  a  high  misdemeanor  to 
beheve  that  a  certain  view  taken  of  the  repeal  of  this  earher 
law  by  the  later  one  is  a  sound  view?  I  submit  that  that 
would  be  altogether  too  stringent  a  rule  even  for  the  honor- 
able Managers  themselves  to  contend  for;  and  they  do  not, 
and  the  House  of  Representatives  does  not,  contend  for 
any  such  rule.  Their  article  alleges  as  matter  of  fact  that 
there  was  a  willful  intention  on  the  part  of  the  President  to 
issue  this  letter  to  General  Thomas  without  authority  of 
law;  not  on  mistaken  judgment,  not  upon  an  opinion  which, 
after  due  consideration,  lawyers  might  differ  about;  but  by 
reason  of  a  willful  intention  to  act  without  authority;  and 
that,  I  submit,  from  the  nature  of  the  case,  cannot  be 
made  out. 

The  next  allegation  in  this  article  to  which  I  desire  to 
invite  the  attention  of  the  Senate  is,  that  the  giving  of  this 
letter  to  General  Thomas  during  the  session  of  the  Senate 
was  a  violation  of  the  Constitution  of  the  United  States. 
That  will  require  your  attentive  consideration.  The  Consti- 
tution, as  you  are  well  aware,  has  provided  for  two  modes 
of  filling  oflfices.  The  one  is  by  temporary  commissions 
during  the  recess  of  the  Senate,  when  the  vacancy  happens 
in  the  recess;  the  other  is  by  appointment  with  the  advice 
and  consent  of  the  Senate,  followed  by  a  commission  from 
the  President;  but  it  very  early  became  apparent  to  those 
who  administered  the  Government  that  cases  must  occur 
to  which  neither  of  those  modes  dictated  by  the  Constitu- 
tion would  be  applicable,  but  which  must  be  provided  for; 
cases  of  temporary  absence  of  the  head  of  a  Department  the 
business  of  which,  especially  during  the  session  of  Congress, 
must,  for  the  public  interest,  continue  to  be  administered; 
cases  of  sickness,  cases  of  resignation  or  removal,  —  for  the 


246  THE  BRIEF 

power  of  removal,  at  any  rate  in  that  day,  was  held  to  be 
in  the  President;  cases  of  resignation  or  removal  in  refer- 
ence to  which  the  President  was  not,  owing  to  the  sudden- 
ness of  the  occurrence,  in  a  condition  immediately  to  make 
a  nomination  to  fill  the  office,  or  even  to  issue  a  commission 
to  fill  the  office,  if  such  vacancy  occurred  in  vacation;  and 
therefore  it  became  necessary  by  legislation  to  supply 
these  administrative  defects  which  existed  and  were  not 
provided  for  by  the  Constitution.  And  accordingly,  begin- 
ning in  1792,  there  will  be  found  to  be  a  series  of  acts  on  this 
subject  of  filling  vacancies  by  temporary  or  ad  interim  au- 
thority; not  appointments,  not  filling  vacancies  in  offices 
by  a  commission  in  the  recess  of  the  Senate,  nor  by  a 
commission  signed  by  the  President  in  consequence  of  the 
advice  and  consent  of  the  Senate;  but  a  mode  of  designat- 
ing a  particular  person  to  perform  temporarily  the  duties 
of  some  particular  office  which  otherwise,  before  the  office 
can  be  filled  in  accordance  with  the  Constitution,  would 
remain  unperformed.  These  acts  are  one  of  May  8,  1792, 
section  8  (1  Statutes-at-Large,  p.  281) ;  February  17,  1795 
(1  Statutes-at-Large,  p.  415);  and  the  last  in  February  20, 
1863  (12  Statutes-at-Large,  p.  656). 

The  Senate  will  observe  what  particular  difficulty  these 
laws  were  designed  to  meet.  This  difficulty  was  the  occur- 
rence of  some  sudden  vacancy  in  office  or  some  sudden  in- 
ability to  perform  the  duties  of  an  office;  and  the  intention 
of  each  of  these  laws  was,  each  being  applied  to  some  par- 
ticular class  of  cases,  to  make  provision  that,  notwithstand- 
ing there  was  a  vacancy  in  the  office,  or  notwithstanding 
there  was  a  temporary  disability  in  the  officer  without  a 
vacancy,  still  the  duties  of  the  office  should  be  temporarily 
discharged.  That  was  the  purpose  of  these  laws.  It  is 
entirely  evident  that  these  temporary  vacancies  are  just  as 
liable  to  occur  during  the  session  of  the  Senate  as  during 
the  recess  of  the  Senate;  that  it  is  just  as  necessary  to  have 


DEFENSE  OF  PRESIDENT  JOHNSON  247 

a  set  of  legislative  provisions  to  enable  the  President  to 
carry  on  the  public  service  in  case  of  these  vacancies  and 
inabilities  during  the  session  of  the  Senate  as  during  the 
recess  of  Senate;  and,  accordingly,  it  will  be  found,  by  look- 
ing into  these  laws,  that  they  make  no  distinction  between 
the  sessions  of  the  Senate  and  the  recesses  of  the  Senate  in 
reference  to  these  temporary  authorities.  "Whenever  a 
vacancy  shall  occur"  is  the  language  of  the  law  —  "when- 
ever there  shall  be  a  death  or  a  resignation  or  an  absence  or 
a  sickness."  The  law  applies  when  the  event  occurs  that 
the  law  contemplates  as  an  emergency;  and  the  particular 
time  when  it  occurs  is  of  no  consequence  in  itself,  and  is 
deemed  by  the  law  of  no  consequence.  In  accordance  with 
this  view.  Senators,  has  been  the  uniform  and  settled  and 
frequent  practice  of  the  Government  from  its  very  earliest 
date,  as  I  am  instructed  we  shall  prove,  not  in  any  one  or 
two  or  few  instances,  but  in  great  numbers  of  instances. 
That  has  been  the  practical  construction  put  upon  these 
laws  from  the  time  when  the  earliest  law  was  passed  in 
1792,  and  it  has  continued  down  to  this  day. 

The  honorable  Managers  themselves  read  a  list  a  few 
days  since  of  temporary  appointments  during  the  session 
of  the  Senate  of  heads  of  Departments,  which  amounted  in 
number,  if  I  counted  them  accurately,  to  upward  of  thirty; 
and  if  you  add  to  these  the  cases  of  officers  below  the  heads 
of  Departments  the  number  will  be  found,  of  course,  to  be 
much  increased;  and,  in  the  course  of  exhibiting  this  evi- 
dence, it  will  be  found  that,  although  the  instances  are  not 
numerous,  for  they  are  not  very  likely  to  occur  in  practice, 
yet  instances  have  occurred  on  all  fours  with  the  one  which 
is  now  before  the  Senate,  where  there  has  been  a  removal  or 
a  suspension  of  an  officer,  sometimes  one  and  sometimes  the 
other,  and  the  designation  of  a  person  has  been  made  at  the 
same  time  temporarily  to  discharge  the  duties  of  that  office. 

The  Senate  will  see  that  in  practice  such  things  must 


248  THE  BRIEF 

naturally  occur.  Take  the  case,  for  instance,  of  Mr.  Floyd, 
which  I  alluded  to  yesterday.  Mr.  Floyd  went  out  of  office. 
His  chief  clerk  was  a  person  believed  to  be  in  sympathy 
with  him  and  under  his  control.  If  the  third  section  of  the 
Act  of  1789  was  allowed  to  operate  the  control  of  the  office 
went  into  the  hands  of  that  clerk.  The  Senate  was  in  ses- 
sion. The  public  safety  did  not  permit  the  War  Depart- 
ment to  be  left  in  that  predicament  for  one  hour,  if  it 
could  be  avoided,  and  President  Buchanan  sent  down  to 
the  Post-Office  Department  and  brought  the  Postmaster- 
General  to  the  War  Department,  and  put  it  in  his  charge. 
There  was  then  in  this  body  a  sufficient  number  of  persons 
to  look  after  that  matter;  they  felt  an  interest  in  it;  and 
consequently  they  passed  a  resolve  inquiring  of  President 
Buchanan  by  what  authority  he  had  made  an  appointment 
of  a  person  to  take  charge  of  the  War  Department  without 
their  consent,  without  a  nomination  to  them,  and  their 
advising  and  consent  to  it;  to  which  a  message  was  sent  in 
answer  containing  the  facts  on  this  subject,  and  showing 
to  the  Senate  of  that  day  the  propriety,  the  necessity,  and 
the  long-continued  practice  under  which  this  authority  was 
exercised  by  him;  and  giving  a  schedule  running  through 
the  time  of  General  Jackson  and  his  two  immediate  succes- 
sors, I  think,  showing  great  numbers  of  ad  interim  appoint- 
ments of  this  character,  and  to  those,  as  I  have  said,  we 
shall  add  a  very  considerable  number  of  others. 

I  submit,  then,  that  there  can  be  no  ground  whatever 
for  the  allegation  that  this  ad  interim  appointment  was  a 
violation  of  the  Constitution  of  the  United  States.  The 
legislation  of  Congress  is  a  sufficient  answer  to  that  charge. 

I  pass,  therefore,  to  the  next  article  which  I  wish  to  con- 
sider, and  that  is  not  the  next  in  number,  but  the  eighth; 
and  I  take  it  in  this  order  because  the  eighth  article,  as  I 
have  analyzed  it,  differs  from  the  second  only  in  one  par- 
ticular; and  therefore,  taking  that  in  connection  with  the 


DEFENSE   OF  PRESIDENT  JOHNSON  249 

second,  of  which  I  have  just  been  speaking,  it  will  be  neces- 
sary for  me  to  say  but  a  very  few  words  concerning  it. 

It  charges  an  attempt  unlawfully  to  control  the  appro- 
priations made  by  Congress  for  the  military  service,  and 
that  is  all  there  is  in  it  except  what  is  in  the  second  article. 

Upon  that,  certainly,  at  this  stage  of  the  case,  I  do  not 
deem  it  necessary  to  make  any  observations.  The  Senate 
will  remember  the  offer  of  proof  on  the  part  of  the  Man- 
agers, designed,  as  was  stated,  to  connect  the  President  of 
the  United  States,  through  his  Private  Secretary,  with  the 
Treasury,  and  thus  enable  him  to  use  unlawfully  appropri- 
ations made  for  the  military  service.  The  Senate  will  recol- 
lect the  fate  of  that  offer,  and  that  the  evidence  was  not 
received;  and  therefore  it  seems  to  me  quite  unnecessary 
to  pause  to  comment  any  further  upon  this  eighth  article. 

I  advance  to  the  third  article,  and  here  the  allegations 
are,  that  the  President  appointed  General  Thomas;  second, 
that  he  did  this  without  the  advice  and  consent  of  the  Sen- 
ate; third,  that  he  did  it  when  no  vacancy  had  happened 
in  the  recess  of  the  Senate;  fourth,  that  he  did  it  when 
there  was  no  vacancy  at  the  time  of  the  appointment;  and 
fifth,  that  he  committed  a  high  misdemeanor  by  thus  in- 
tentionally violating  the  Constitution  of  the  United  States. 

I  desire  to  say  a  word  or  two  upon  each  of  these  points; 
and  first  we  deny  that  he  ever  appointed  General  Thomas 
to  an  office.  An  appointment  can  be  made  to  an  office  only 
by  the  advice  and  consent  of  the  Senate,  and  through  a 
commission  signed  by  the  President,  and  bearing  the  great 
seal  of  the  Government.  That  is  the  only  mode  in  which  the 
appointment  can  be  made.  The  President,  as  I  have  said, 
may  temporarily  commission  officers  when  vacancies  occur 
during  the  recess  of  the  Senate.  That  is  not  an  appoint- 
ment. It  is  not  so  termed  in  the  Constitution.  A  clear 
distinction  is  drawn  between  the  two.  The  President  also 
may,  under  the  Acts  of  1795  and  1863,  designate  persons 


250  THE  BRIEF 

who  shall  temporarily  exercise  the  authority  and  perform 
the  duties  of  a  certain  office  when  there  is  a  vacancy;  but 
that  is  not  an  appointment.  The  office  is  not  filled  by  such 
a  designation.  Now,  all  which  the  President  did  was  to 
issue  a  letter  of  authority  to  General  Thomas,  authorizing 
him  ad  interim  to  perform  the  duties  of  Secretary  of  War. 
In  no  sense  was  this  an  appointment. 

It  is  said  it  was  made  without  the  advice  and  consent  of 
the  Senate.  Certainly  it  was.  How  can  the  advice  and 
consent  of  the  Senate  be  obtained  to  an  ad  interim  author- 
ity of  this  kind  under  any  of  these  acts  of  Congress.?  It  is 
not  an  appointment  that  is  in  view.  It  is  to  supply  tem- 
porarily a  defect  in  the  administrative  machinery  of  the 
Government.  If  he  had  gone  to  the  Senate  for  their  advice 
and  consent,  he  must  have  gone  on  a  nomination  made  by 
him  of  General  Thomas  to  this  office,  a  thing  he  never 
intended  to  do,  and  never  made  any  attempt  to  carry  into 
effect. 

It  is  said  no  vacancy  happened  in  the  recess.  That  I  have 
already  considered.  Temporary  appointments  are  not 
limited  to  the  temporary  supply  of  vacancies  happening  in 
the  recess  of  the  Senate,  as  I  have  already  endeavored  to 
show. 

It  is  said  there  was  no  vacancy  at  the  time  the  act  was 
done.  That  is  begging  the  question.  If  Mr.  Stanton's  case 
was  not  within  the  Tenure-of -Office  Act,  if,  as  I  have  so  often 
repeated,  he  held  under  the  Act  of  1789,  and  at  the  pleasure 
of  the  President,  the  moment  he  received  that  order  which 
General  Thomas  carried  to  him  there  was  a  vacancy  in 
point  of  law,  however  he  may  have  refused  to  perform  his 
duty  and  prevented  a  vacancy  from  occurring  in  point  of 
fact.  But  the  Senate  will  perceive  these  two  letters  were  to 
be  delivered  to  General  Thomas  at  the  same  time.  One 
of  them  is  an  order  to  Mr.  Stanton  to  vacate  the  office;  the 
other  is  a  direction  to  General  Thomas  to  take  possession 


DEFENSE   OF   PRESIDENT  JOHNSON  251 

when  Mr.  Stanton  obeys  the  order  thus  given.  Now,  may 
not  the  President  of  the  United  States  issue  a  letter  of  au- 
thority in  contemplation  that  a  vacancy  is  about  to  occur? 
Is  he  bound  to  take  a  technical  view  of  this  subject,  and 
have  the  order  creating  the  vacancy  first  sent  and  deliv- 
ered, and  then  sit  down  at  his  table  and  sign  the  letter  of 
authority  afterward?  If  he  expects  a  vacancy,  if  he  has 
done  an  act  which  in  his  judgment  is  sufficient  to  create  a 
vacancy,  may  he  not,  in  contemplation  that  that  vacancy 
is  to  happen,  sign  the  necessary  paper  to  give  the  temporary 
authority  to  carry  on  the  duties  of  the  office? 

Last  of  all,  it  is  said  he  committed  a  high  misdemeanor 
by  intentionally  violating  the  Constitution  of  the  United 
States  when  he  gave  General  Thomas  this  letter  of  author- 
ity. If  I  have  been  successful  in  the  argument  I  have  al- 
ready addressed  to  you  you  will  be  of  opinion  that  in  point 
of  fact  there  was  no  violation  of  the  Constitution  of  the 
United  States  by  delivering  this  letter  of  authority,  because 
the  Constitution  of  the  United  States  makes  no  provision 
on  the  subject  of  these  temporary  authorities,  and  the  law 
of  Congress  has  made  provision  equally  applicable  to  the 
recess  of  the  Senate  and  to  its  session. 

Here,  also,  I  beg  leave  to  remind  the  Senate  that  if  Mr. 
Stanton's  case  does  not  fall  within  the  Tenure-of -Office  Act, 
if  the  order  which  the  President  gave  to  him  to  vacate  the 
office  was  a  lawful  order  and  one  which  he  was  bound  to 
obey,  everything  which  is  contained  in  this  article,  as  well 
as  in  the  preceding  articles,  fails.  It  is  impossible,  I  sub- 
mit, for  the  honorable  Managers  to  construct  a  case  of  an 
intention  on  the  part  of  the  President  to  violate  the  Con- 
stitution of  the  United  States  out  of  anything  which  he  did 
in  reference  to  the  appointment  of  General  Thomas,  pro- 
vided the  order  to  Mr.  Stanton  was  a  lawful  order  and  Mr. 
Stanton  was  bound  to  obey  it. 

I  advance  now,  Senators,  to  a  different  class  of  articles. 


252  THE   BRIEF 

and  they  may  properly  enough,  I  suppose,  be  called  the 
conspiracy  articles,  because  they  rest  upon  charges  of  con- 
spiracy between  the  President  and  General  Thomas.  There 
are  four  of  them,  the  fourth,  fifth,  sixth,  and  seventh  in 
number  as  they  stand.  The  fourth  and  the  sixth  are  framed 
under  the  Act  of  July  31, 1861,  which  is  foimd  in  12  Stat- 
utes-at-Large,  page  284.  The  fifth  and  seventh  are  framed 
under  no  act  of  Congress.  They  allege  an  unlawful  con- 
spiracy, but  they  refer  to  no  law  by  which  the  acts  charged 
are  made  unlawful.  The  acts  charged  are  called  unlawful, 
but  there  is  no  law  referred  to  and  no  case  made  by  the 
articles  within  any  law  of  the  United  States  that  is  known 
to  the  President's  counsel.  I  shall  treat  these  articles, 
therefore,  the  fourth  and  sixth  together,  and  the  fifth 
and  seventh  together,  because  I  think  they  belong  in  that 
order.  In  the  first  place,  let  me  consider  the  fourth  and 
sixth,  which  charge  a  conspiracy  within  this  act  which  I 
have  just  mentioned.  It  is  necessary  for  me  to  read  the 
substance  of  this  law  in  order  that  you  may  see  whether 
it  can  have  any  possible  application  to  this  case.  It  was 
passed  on  the  31st  of  July,  1861,  as  a  war  measure,  and  is 
entitled,  "An  act  to  define  and  punish  certain  conspir- 
acies."  It  provides  — 

That  if  two  or  more  persons  within  any  State  or  Territory  of 
the  United  States  shall  conspire  together  to  overthrow  or  to  put 
down  or  to  destroy  by  force  the  Government  of  the  United  States, 
or  to  levy  war  against  the  United  States,  or  to  oppose  by  force  the 
authority  of  the  Government  of  the  United  States;  or  by  force  to 
prevent,  hinder,  or  delay  the  execution  of  any  law  of  the  United 
States;  or  by  force  to  seize,  take,  or  possess  any  property  of  the 
United  States  against  the  will  or  contrary  to  the  authority  of 
the  United  States;  or  by  force,  or  intimidation,  or  threat  to  pre- 
vent any  person  from  accepting  or  holding  any  office  or  trust  or 
place  of  confidence  under  the  United  States. 

These  are  the  descriptions  of  the  offenses.  The  fourth 
and  sixth  articles  contain  allegations  that  the  President  and 


DEFENSE  OF   PRESIDENT  JOHNSON  253 

General  Thomas  conspired  together  by  force,  intimidation, 
and  threats  to  prevent  Mr.  Stanton  from  continuing  to 
hold  the  office  of  Secretary  for  the  Department  of  War;  and 
also  that  they  conspired  together  by  force  to  obtain  pos- 
session of  property  belonging  to  the  United  States.  These 
are  the  two  articles  which  I  suppose  are  designed  to  be 
drawn  under  this  act;  and  these  are  the  allegations  which  are 
intended  to  bring  the  articles  within  it. 

Now,  it  does  seem  to  me  that  the  attempt  to  wrest  this 
law  to  any  bearing  whatsoever  upon  this  prosecution  is  one 
of  the  extraordinary  things  which  the  case  contains.  In  the 
first  place,  so  far  from  having  been  designed  to  apply  to  the 
President  of  the  United  States  or  to  any  act  he  might  do  in 
the  course  of  the  execution  of  what  he  believed  to  be  his 
duty,  it  does  not  apply  to  any  man  or  any  thing  within  the 
District  of  Columbia  at  all. 

If  two  or  more  persons  within  any  State  or  Territory  of  the 
United  States. 

Not  within  the  District  of  Columbia.  This  is  a  highly 
penal  law,  and  an  indictment  found  in  the  very  words  of 
this  act  charging  things  to  have  been  in  the  District  of 
Columbia  and  returned  into  the  proper  court  of  this  Dis- 
trict, I  will  undertake  to  say,  would  not  bear  a  general  de- 
murrer, because  there  is  locality  given  to  those  things  made 
penal  by  this  act  of  Congress.  It  is  made  applicable  to  cer- 
tain portions  of  the  country,  but  not  made  applicable  to 
the  District  of  Columbia. 

But  not  to  dwell  upon  that  technical  view  of  the  matter, 
and  on  which  we  should  not  choose  to  stand,  let  us  see  what 
is  this  case.  The  President  of  the  United  States  is  of  opin- 
ion that  Mr.  Stanton  holds  the  office  of  Secretary  for  the 
Department  of  War  at  his  pleasure.  He  thinks  so,  first,  be- 
cause he  believes  the  case  of  Mr.  Stanton  is  not  provided 
for  in  the  Tenure-of -Office  Act,  and  no  tenure  of  office  is 


254  THE  BRIEF 

secured  to  him.  He  thinks  so,  secondly,  because  he  believes 
that  it  would  be  judicially  decided,  if  the  question  could  be 
raised,  that  a  law  depriving  the  President  of  the  power  of 
removing  such  an  officer  at  his  pleasure  is  not  a  constitu- 
tional law.  He  is  of  opinion  that  in  this  case  he  cannot  allow 
this  officer  to  continue  to  act  as  his  adviser  and  as  his  agent 
to  execute  the  laws  if  he  has  lawful  power  to  remove  him; 
and  under  these  circumstances  he  gives  this  order  to  Gen- 
eral Thomas. 

I  do  not  view  this  letter  of  authority  to  General  Thomas 
as  a  purely  military  order.  The  service  which  General 
Thomas  was  invoked  for  is  a  civil  service;  but,  at  the  same 
time.  Senators  will  perceive  that  the  person  who  gave  the 
order  is  the  Commander-in-Chief  of  the  Army;  that  the  per- 
son to  whom  it  was  given  is  the  Adjutant-General  of  the 
Army;  that  the  subject-matter  to  which  the  order  relates 
is  the  performance  of  services  essential  to  carry  on  the  mili- 
tary service;  and,  therefore,  when  such  an  order  was  given 
by  the  Commander-in-Chief  to  the  Adjutant-General  re- 
specting a  subject  of  this  kind,  is  it  too  much  to  say  that 
there  was  invoked  that  spirit  of  military  obedience  which 
constitutes  the  strength  of  the  service?  Not  that  it  was 
a  purely  military  order;  not  that  General  Thomas  would 
have  been  subject  to  a  court-martial  for  disobeying  it;  but 
that  as  a  faithful  Adjutant-General  of  the  Army  of  the 
United  States,  interested  personally  and  professionally  and 
patriotically  to  have  the  duties  of  the  office  of  Secretary 
for  the  Department  of  War  performed  in  a  temporary  va- 
cancy, was  it  not  his  duty  to  accept  the  appointment,  unless 
he  saw  and  knew  that  it  was  unlawful  to  accept  it?  I  do 
not  know  how,  in  fact,  he  personally  considered  it;  there 
has  been  no  proof  given  on  the  subject;  but  I  have  always 
assumed  —  I  think  Senators  will  assume  —  that  when  the 
distinguished  General  of  the  Army  of  the  United  States, 
on  a  previous  occasion,  accepted  a  similar  appointment,  it 


DEFENSE   OF   PRESIDENT   JOHNSON  255 

was  under  views  of  propriety  and  duty  such  as  those  which 
I  have  now  been  speaking  of;  and  how  and  why  is  there  to 
be  attributed  to  General  Thomas,  as  a  co-conspirator,  the 
guilty  intent  of  designing  to  overthrow  the  laws  of  his 
country,  when  a  fair  and  just  view  of  his  conduct  would 
leave  him  entirely  without  reproach? 

And  when  you  come,  Senators,  to  the  other  co-conspira- 
tor, the  President  of  the  United  States,  is  not  the  case  still 
clearer?  Make  it  a  case  of  private  right,  if  you  please;  put  it 
as  strongly  as  possible  against  the  President  in  order  to  test 
the  question.  One  of  you  has  a  claim  to  property;  it  may 
be  a  disputed  claim;  it  is  a  claim  which  he  believes  may 
prove,  when  judicially  examined,  to  be  sound  and  good. 
He  says  to  A  B,  "Go  to  C  D,  who  is  in  possession  of  that 
property;  I  give  you  this  order  to  him  to  give  it  up  to  you; 
and  if  he  gives  it  up  take  possession."  Did  anybody  ever 
imagine  that  that  was  a  conspiracy?  Does  not  every  lawyer 
know  that  the  moment  you  introduce  into  any  transaction 
of  this  kind  the  element  of  a  claim  of  right  all  criminal  ele- 
ments are  purged  at  once;  and  that  this  is  always  true  be- 
tween man  and  man  where  it  is  a  simple  assertion  of  private 
right,  the  parties  to  which  are  at  liberty  either  to  assert 
them  or  forego  them,  as  they  please?  But  this  was  not  such 
a  case;  this  was  a  case  of  public  right,  of  public  duty,  of 
public  right  claimed  upon  constitutional  grounds  and  upon 
the  interpretation  of  the  law  which  had  been  given  to  it  by 
the  lawmakers  themselves.  How  can  the  President  of  the 
United  States,  under  such  circumstances,  be  looked  upon 
by  anybody,  whether  he  may  or  may  not  be  guilty  or  not 
guilty  of  other  things  as  a  co-conspirator  under  this  act? 

These  articles  say  that  the  conspiracy  between  the  Presi- 
dent and  General  Thomas  was  to  employ  force,  threats,  in- 
timidation. What  they  have  proved  against  the  President 
is  that  he  issued  these  orders,  and  that  alone.  Now,  on  the 
face  of  these  orders,  there  is  no  apology  for  the  assertion 


256  THE  BRIEF 

that  it  was  the  design  of  the  President  that  anybody  at 
any  time  should  use  force,  threats,  or  intimidation.  The 
order  is  to  Mr.  Stanton  to  dehver  up  possession.  The  order 
to  General  Thomas  is  to  receive  possession  from  Mr.  Stan- 
ton when  he  delivers  it  up.  No  force  is  assigned  to  him; 
no  authority  is  given  to  him  to  apply  for  or  use  any  force, 
threats,  or  intimidation.  There  is  not  only  no  express  au- 
thority, but  there  is  no  implication  of  any  authority  to 
apply  for  or  obtain  or  use  anything  but  the  order  which  was 
given  him  to  hand  to  Mr.  Stanton;  and  we  shall  offer  proof. 
Senators,  which  we  think  cannot  fail  to  be  satisfactory  in 
point  of  fact,  that  the  President  from  the  first  had  in  view 
simply  and  solely  to  test  this  question  by  the  law;  that  if 
this  was  a  conspiracy  it  was  a  conspiracy  to  go  to  law,  and 
that  was  the  whole  of  it.  We  shall  show  you  what  advice 
the  President  received  on  this  subject,  what  views  in  con- 
cert with  his  advisers  he  entertained,  which,  of  course,  it  is 
not  my  province  now  to  comment  upon;  the  evidence  must 
first  be  adduced,  then  it  will  be  time  to  consider  it. 

The  other  two  conspiracy  articles  will  require  very  little 
observation  from  me,  because  they  contain  no  new  allega- 
tions of  fact  which  are  not  in  the  fourth  and  sixth  articles, 
which  I  have  already  adverted  to;  and  the  only  distinction 
between  them  and  the  others  is  that  they  are  not  founded 
upon  this  conspiracy  act  of  1861;  they  simply  allege  an 
unlawful  conspiracy,  and  leave  the  matter  there.  They  do 
not  allege  sufficient  facts  to  bring  the  case  within  the  Act  of 
1861.  In  other  words,  they  do  not  allege  force,  threats,  or 
intimidation.  I  shall  have  occasion  to  remark  upon  these 
articles  when  I  come  to  speak  of  the  tenth  article,  because 
these  articles,  as  you  perceive,  come  within  that  category 
which  the  honorable  Manager  announced  here  at  an  early 
period  of  the  trial;  articles  which  require  no  law  to  support 
them;  and  when  I  come  to  speak  of  the  tenth  article,  as  I 
shall  have  occasion  to  discuss  this  subject,  I  wish  that  my 


DEFENSE   OF  PRESIDENT  JOHNSON  257 

remarks,  so  far  as  they  may  be  deemed  applicable,  should 
be  applied  to  these  fifth  and  seventh  articles  which  I  have 
thus  passed  over. 

I  shall  detain  the  Senate  but  a  moment  upon  the  ninth 
article,  which  is  the  one  relating  to  the  conversation  with 
General  Emory.  The  meaning  of  this  article,  as  I  read  it,  is 
that  the  President  brought  General  Emory  before  himself 
as  Commander-in-Chief  of  the  Army  for  the  purpose  of 
instructing  him  to  disobey  the  law,  with  an  intent  to  induce 
General  Emory  to  disobey  it,  and  with  intent  to  enable 
himself  unlawfully  and  by  the  use  of  military  force  through 
General  Emory,  to  prevent  Mr.  Stanton  from  continuing 
to  hold  office.  Now,  I  submit  that,  not  only  does  this  ar- 
ticle fail  of  proof  in  its  substance  as  thus  detailed,  but  that 
it  is  disproved  by  the  witness  whom  they  have  introduced 
to  support  it.  In  the  first  place,  it  appears  clearly  from 
General  Emory's  statement  that  the  President  did  not 
bring  him  there  for  any  purpose  connected  with  this  appro- 
priation bill  affecting  the  command  of  the  Army,  or  the 
orders  given  to  the  Army.  This  subject  General  Emory 
introduced  himself,  and  when  the  conversation  was  broken 
off  it  was  again  recurred  to  by  himself  asking  the  Presi- 
dent's permission  to  bring  it  to  his  attention.  Whatsoever 
was  said  upon  that  subject  was  said  not  because  the  Presi- 
dent of  the  United  States  had  brought  the  commander  of 
the  department  of  Washington  before  him  for  that  purpose, 
but  because,  having  brought  him  there  for  another  purpose, 
to  which  I  shall  allude  in  a  moment,  the  commanding  Gen- 
eral chose  himself  to  introduce  that  subject  and  converse 
upon  it,  and  obtain  the  President's  views  upon  it. 

In  the  next  place,  having  his  attention  called  to  the  act 
of  Congress  and  to  the  order  under  it,  the  President  ex- 
pressed precisely  the  same  opinion  to  General  Emory  that 
he  had  previously  publicly  expressed  to  Congress  itself  at 
the  time  when  the  act  was  sent  to  him  for  his  signature; 


258  THE  BRIEF 

and  there  is  found  set  out  in  his  answer  on  page  32  of  the 
official  report  of  these  proceedings  what  that  opinion  was : 
that  he  considered  that  this  provision  interfered  with  his 
constitutional  right  as  the  Commander-in-Chief  of  the 
Army;  and  that  is  what  he  said  to  General  Emory.  There  is 
not  even  probable  cause  to  believe  that  he  said  it  for  any 
other  than  the  natural  reason  that  General  Emory  had  in- 
troduced the  subject,  had  asked  leave  to  call  his  attention 
to  it,  and  evidently  expected  and  desired  that  the  President 
should  say  something  on  the  subject;  and  if  he  said  any- 
thing was  he  not  to  tell  the  truth?  That  is  exactly  what  he 
did  say.  I  mean  the  truth  as  he  apprehended  it.  It  will  ap- 
pear in  proof,  as  I  am  instructed,  that  the  reason  why  the 
President  sent  for  General  Emory  was  not  that  he  might 
endeavor  to  seduce  that  distinguished  officer  from  his  alle- 
giance to  the  laws  and  the  Constitution  of  his  country,  but 
because  he  wished  to  obtain  information  about  military 
movements  which  he  was  informed  upon  authority  which 
he  had  a  right  to  and  was  bound  to  respect  might  require 
his  personal  attention. 

I  pass,  then,  from  this  article,  as  being  one  upon  which  I 
ought  not  to  detain  the  Senate,  and  I  come  to  the  last  one, 
concerning  which  I  shall  have  much  to  say,  and  that  is  the 
tenth  article,  which  is  all  of  and  concerning  the  speeches  of 
the  President. 

In  the  front  of  this  inquiry  the  question  presents  itself: 
What  are  impeachable  offenses  under  the  Constitution  of 
the  United  States?  Upon  this  question  learned  disserta- 
tions have  been  written  and  printed.  One  of  them  is  an- 
nexed to  the  argument  of  the  honorable  Manager  who 
opened  the  cause  for  the  prosecution.  Another  one  on  the 
other  side  of  the  question,  written  by  one  of  the  honorable 
Managers  themselves,  may  be  found  annexed  to  the  pro- 
ceedings in  the  House  of  Representatives  upon  the  occasion 
of  the  first  attempt  to  impeach  the  President.   And  there 


DEFENSE   OF   PRESIDENT   JOHNSON  259 

have  been  others  written  and  pubHshed  by  learned  jurists 
touching  this  subject.  I  do  not  propose  to  vex  the  ear  of 
the  Senate  with  any  of  the  precedents  drawn  from  the  Mid- 
dle Ages.  The  framers  of  our  Constitution  were  quite  as 
familiar  with  them  as  the  learned  authors  of  these  treatises, 
and  the  framers  of  our  Constitution,  as  I  conceive,  have 
drawn  from  them  the  lesson  which  I  desire  the  Senate  to 
receive,  that  these  precedents  are  not  fit  to  govern  their 
conduct  on  this  trial. 

In  my  apprehension,  the  teachings,  the  requirements,  the 
prohibitions  of  the  Constitution  of  the  United  States  prove 
all  that  is  necessary  to  be  attended  to  for  the  purposes  of 
this  trial.  I  propose,  therefore,  instead  of  a  search  through 
the  precedents  which  were  made  in  the  times  of  the  Plan- 
tagenets,  the  Tudors,  and  the  Stuarts,  and  which  have  been 
repeated  since,  to  come  nearer  home  and  see  what  provi- 
sions of  the  Constitution  of  the  United  States  bear  on  this 
question,  and  whether  they  are  not  sufficient  to  settle  it. 
If  they  are  it  is  quite  immaterial  what  exists  elsewhere. 

My  first  position  is,  that  when  the  Constitution  speaks 
of  "treason,  bribery,  and  other  high  crimes  and  misde- 
meanors" it  refers  to,  and  includes  only,  high  criminal 
offenses  against  the  United  States,  made  so  by  some  law  of 
the  United  States  existing  when  the  acts  complained  of 
were  done;  and  I  say  that  this  is  plainly  to  be  inferred  from 
each  and  every  provision  of  the  Constitution  on  the  subject 
of  impeachment. 

"Treason"  and  "bribery."  Nobody  will  doubt  that 
these  are  here  designated  high  crimes  and  misdemeanors 
against  the  United  States,  made  such  by  the  laws  of  the 
United  States,  which  the  framers  of  the  Constitution  knew 
must  be  passed  in  the  nature  of  the  Government  they  were 
about  .to  create,  because  these  are  offenses  which  strike  at 
the  existence  of  that  Government.  "Other  high  crimes 
and  misdemeanors."  Noscitur  a  sociis.   High  crimes  and 


260  THE  BRIEF 

misdemeanors;  so  high  that  they  belong  in  this  company 
with  treason  and  bribery.  That  is  plain  on  the  face  of  the 
Constitution;  in  the  very  first  step  it  takes  on  the  sub- 
ject of  impeachment.  "High  crimes  and  misdemeanors" 
against  what  law.^  There  can  be  no  crime,  there  can  be  no 
misdemeanor  without  a  law,  written  or  unwritten,  express 
or  implied.  There  must  be  some  law;  otherwise  there  is  no 
crime.  My  interpretation  of  it  is  that  the  language  "high 
crimes  and  misdemeanors"  means  "offenses  against  the 
laws  of  the  United  States."  Let  us  see  if  the  Constitution 
has  not  said  so. 

The  first  clause  of  the  second  section  of  the  second  article 
of  the  Constitution  reads  thus:  "The  President  of  the 
United  States  shall  have  the  power  to  grant  reprieves  and 
pardons  for  offenses  against  the  United  States,  except 
in  cases  of  impeachment."  "Offenses  against  the  United 
States"  would  include  "cases  of  impeachment,"  and  they 
might  be  pardoned  by  the  President  if  they  were  not  ex- 
cepted. Then  cases  of  impeachment  are,  according  to  the 
express  declaration  of  the  Constitution  itself,  cases  of 
offenses  against  the  United  States. 

Still,  the  learned  Manager  says  that  this  is  not  a  court, 
and  that,  whatever  may  be  the  character  of  this  body,  it  is 
bound  by  no  law.  Very  different  was  the  understanding  of 
the  fathers  of  the  Constitution  on  this  subject. 

Mr.  Manager  Butler.  Will  you  state  where  it  was  I 
said  it  was  bound  by  no  law? 

Mr.  Stanbery.   "A  law  unto  itself." 

Mr.  Manager  Butler.  "No  common  or  statute  law" 
was  my  language. 

Mr.  Curtis.  I  desire  to  refer  to  the  sixty-fourth  number 
of  the  Federalist  which  is  found  in  Dawson's  edition,  on 
page  453: 

The  remaining  powers  which  the  plan  of  the  Convention  allots 
to  the  Senate,  in  a  distinct  capacity,  are  comprised  in  their  partici- 


DEFENSE  OF  PRESIDENT   JOHNSON  261 

pation  with  the  Executive  in  the  appointment  to  offices,  and  in 
their  judicial  character  as  a  court  for  the  trial  of  impeachments, 
as  in  the  business  of  appointments  the  Executive  will  be  the 
principal  agent,  the  provisions  relating  to  it  will  most  properly 
be  discussed  in  the  examination  of  that  department.  We  will 
therefore  conclude  this  head  with  a  view  of  the  judicial  character 
of  the  Senate. 

And  then  it  is  discussed.  The  next  position  to  which  I 
desire  the  attention  of  the  Senate  is,  that  there  is  enough 
written  in  the  Constitution  to  prove  that  this  is  a  court  in 
which  a  judicial  trial  is  now  being  carried  on.  "The  Senate 
of  the  United  States  shall  have  the  sole  power  to  try  all 
impeachments."  "When  the  President  is  tried  the  Chief 
Justice  shall  preside."  The  trial  of  all  crimes,  except  in  case 
of  impeachment,  shall  be  by  jury.  This,  then,  is  the  trial 
of  a  crime.  You  are  the  triers,  presided  over  by  the  Chief 
Justice  of  the  United  States  in  this  particular  case,  and  that 
on  the  express  words  of  the  Constitution.  There  is  also, 
according  to  its  express  words,  to  be  an  acquittal  or  a  con- 
viction on  this  trial  for  a  crime.  "No  person  shall  be  con- 
victed without  the  concurrence  of  two  thirds  of  the  mem- 
bers present."  There  is  also  to  be  a  judgment  in  case  there 
shall  be  a  conviction. 

Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  removal  from  office  and  disqualification  to  hold  any  office 
of  honor,  trust,  or  profit  under  the  United  States. 

Here,  then,  there  is  the  trial  of  a  crime,  a  trial  by  a  tri- 
bunal designated  by  the  Constitution  in  place  of  court  and 
jury,  a  conviction,  if  guilt  is  proved,  a  judgment  on  that 
conviction,  a  punishment  inflicted  by  the  judgment  for  a 
crime;  and  this  on  the  express  terms  of  the  Constitution 
itself.  And  yet,  say  the  honorable  Managers,  there  is  no 
court  to  try  the  crime  and  no  law  by  which  the  act  is  to  be 
judged.  The  honorable  Manager  interrupted  me  to  say 
that  he  qualified  that  expression  of  no  law;  his  expression 


262  THE  BRIEF 

was  "no  common  or  statute  law."  Well,  when  you  get  out 
of  that  field  you  are  in  a  limbo,  a  vacuum,  so  far  as  law  is 
concerned,  to  the  best  of  my  knowledge  and  belief. 

I  say,  then,  that  it  is  impossible  not  to  come  to  the  con- 
clusion that  the  Constitution  of  the  United  States  has 
designated  impeachable  offenses  as  offenses  against  the 
United  States,  that  it  has  provided  for  the  trial  of  those 
offenses,  that  it  has  established  a  tribunal  for  the  purpose  of 
trying  them,  that  it  has  directed  the  tribunal  in  case  of 
conviction  to  pronounce  a  judgment  upon  the  conviction 
and  inflict  a  punishment.  All  this  being  provided  for,  can 
it  be  maintained  that  this  is  not  a  court,  or  that  it  is  bound 
by  no  law? 

But  the  argument  does  not  rest  mainly,  I  think,  upon  the 
provisions  of  the  Constitution  concerning  impeachment.  It 
is,  at  any  rate,  vastly  strengthened  by  the  direct  prohibi- 
tions of  the  Constitution.  "  Congress  shall  pass  no  bill  of  at- 
tainder or  ex  post  facto  law."  According  to  that  prohibition 
of  the  Constitution,  if  every  member  of  this  body  sitting  in 
its  legislative  capacity  and  every  member  of  the  other  body 
sitting  in  its  legislative  capacity,  should  unite  in  passing  a 
law  to  punish  an  act  after  the  act  was  done,  that  law  would 
be  a  mere  nullity.  Yet  what  is  claimed  by  the  honorable 
Managers  in  behalf  of  members  of  this  body?  As  a  Con- 
gress you  cannot  create  a  law  to  punish  these  acts  if  no 
law  existed  at  the  time  they  were  done;  but  sitting  here  as 
judges,  not  only  after  the  fact  but  while  the  case  is  on  trial, 
you  may  individually,  each  one  of  you,  create  a  law  by 
himself  to  govern  the  case. 

According  to  this  assumption  the  same  Constitution 
which  has  made  it  a  bill  of  rights  of  the  American  citizen, 
not  only  as  against  Congress  but  as  against  the  Legislature 
of  every  State  in  the  Union,  that  no  ex  post  facto  law  shall 
be  passed  —  this  same  Constitution  has  erected  you  into  a 
body  and  empowered  every  one  of  you  to  say  aut  inveniam 


DEFENSE   OF   PRESIDENT   JOHNSON  263 

aut  faciam  viam :  if  I  cannot  find  a  law  I  will  make  one. 
Nay,  it  has  clothed  every  one  of  you  with  imperial  power; 
it  has  enabled  you  to  say,  sic  volo,  sic  jubeOy  stat  pro  ratione 
voluntas :  I  am  a  law  unto  myself,  by  which  law  I  shall  gov- 
ern this  case.  And,  more  than  that,  when  each  one  of  you, 
before  he  took  his  place  here,  called  God  to  witness  that  he 
would  administer  impartial  justice  in  this  case  according 
to  the  Constitution  and  the  laws,  he  meant  such  laws  as  he 
might  make  as  he  went  along.  The  Constitution,  which  had 
prohibited  anybody  from  making  such  laws,  he  swore  to 
observe;  but  he  also  swore  to  be  governed  by  his  own  will; 
his  own  individual  will  was  the  law  which  he  thus  swore  to 
observe;  and  this  special  provision  of  the  Constitution  that 
when  the  Senate  sits  in  this  capacity  to  try  an  impeachment 
the  Senators  shall  be  on  oath  means  mwely  that  they  shall 
swear  to  follow  their  own  individual  wills !  I  respectfully 
submit  this  view  cannot  consistently  and  properly  be  taken 
of  the  character  of  this  body  or  of  the  duties  and  powers 
incumbent  upon  it. 

Look  for  a  moment,  if  you  please,  to  the  other  provision. 
This  same  search  into  the  English  precedents,  so  far  from 
having  made  our  ancestors  who  framed  and  adopted  the 
Constitution  in  love  with  them,  led  them  to  put  into  the 
Constitution  a  positive  and  absolute  prohibition  against 
any  bill  of  attainder.  What  is  a  bill  of  attainder.^  It  is  a 
case  before  the  Parliament  where  the  Parliament  make  the 
law  for  the  facts  they  find.  Each  legislator  (for  it  is  in  their 
legislative  capacity  they  act,  not  in  a  judicial  one)  is,  to  use 
the  phrase  of  the  honorable  Managers,  "a  law  unto  him- 
self"; and  according  to  his  discretion,  his  views  of  what  is 
politic  or  proper  under  the  circumstances,  he  frames  a  law 
to  meet  the  case  and  enacts  it  or  votes  in  its  enactment. 
According  to  the  doctrine  now  advanced,  bills  of  attainder 
are  not  prohibited  by  this  Constitution;  they  are  only 
slightly  modified.    It  is  only  necessary  for  the  House  of 


264  THE  BRIEF 

Representatives  by  a  majority  to  vote  an  impeachment  and 
send  up  certain  articles  and  have  two  thirds  of  this  body 
vote  in  favor  of  conviction,  and  there  is  an  attainder;  and  it 
is  done  by  the  same  process  and  depends  on  identically  the 
same  principles  as  a  bill  of  attainder  in  the  English  Parlia- 
ment. The  individual  wills  of  the  legislators,  instead  of  the 
conscientious  discharge  of  the  duty  of  the  judges,  settle  the 
result. 

I  submit,  then.  Senators,  that  this  view  of  the  honorable 
Managers  of  the  duties  and  powers  of  this  body  cannot  be 
maintained.  But  the  attempt  made  by  the  honorable  Man- 
agers to  obtain  a  conviction  upon  this  tenth  article  is  at- 
tended with  some  peculiarities  which  I  think  it  is  the  duty 
of  the  counsel  to  the  President  to  advert  to.  So  far  as 
regards  the  preceding  articles,  the  first  eight  articles  are 
framed  upon  allegations  that  the  President  broke  a  law.  I 
suppose  the  honorable  Managers  do  not  intend  to  carry 
their  doctrine  so  far  as  to  say  that  unless  you  find  the  Presi- 
dent did  intentionally  break  a  law  those  articles  are  sup- 
ported. As  to  those  articles  there  is  some  law  unquestion- 
ably, the  very  gist  of  the  charge  being  that  he  broke  a  law. 
You  must  find  that  the  law  existed;  you  must  construe  it 
and  apply  it  to  the  case;  you  must  find  his  criminal  intent 
willfully  to  break  the  law,  before  the  articles  can  be  sup- 
ported. But  we  come  now  to  this  tenth  article,  which  de- 
pends upon  no  law  at  all,  but,  as  I  have  said,  is  attended 
with  some  extraordinary  peculiarities. 

The  complaint  is  that  the  President  made  speeches 
against  Congress.  The  true  statement  here  would  be  much 
more  restricted  than  that;  for  although  in  those  speeches 
the  President  used  the  word  "Congress,"  undoubtedly  he 
did  not  mean  the  entire  constitutional  body  organized 
under  the  Constitution  of  the  United  States;  he  meant  the 
dominant  majority  in  Congress.  Everybody  so  understood 
it;  everybody  must  so  understand  it.  But  the  complaint  is 


I 


DEFENSE  OF  PRESIDENT  JOHNSON  265 

that  he  made  speeches  against  those  who  governed  in  Con- 
gress. Well,  who  are  the  grand  jury  in  this  case?  One  of  the 
parties  spoken  against.  And  who  are  the  triers?  The  other 
party  spoken  against.  One  would  think  there  was  some 
incongruity  in  this;  some  reason  for  giving  pause  before 
taking  any  very  great  stride  in  that  direction.  The  honor- 
able House  of  Representatives  sends  its  Managers  here  to 
take  notice  of  what?  That  the  House  of  Representatives 
has  erected  itself  into  a  school  of  manners,  selecting  from 
its  ranks  those  gentlemen  whom  it  deems  most  competent 
by  precept  and  example  to  teach  decorum  of  speech;  and 
they  desire  the  judgment  of  this  body  whether  the  Presi- 
dent has  not  been  guilty  of  indecorum,  whether  he  has 
spoken  properly,  to  use  the  phrase  of  the  honorable  Man- 
ager. Now,  there  used  to  be  an  old-fashioned  notion  that 
although  there  might  be  a  difference  of  taste  about  oral 
speeches,  and,  no  doubt,  always  has  been  and  always  will 
be  many  such  differences,  there  was  one  very  important 
test  in  reference  to  them,  and  that  is  whether  they  are  true 
or  false;  but  it  seems  that  in  this  case  that  is  no  test  at  all. 
The  honorable  Manager,  in  opening  the  case,  finding,  I  sup- 
pose, that  it  was  necessary,  in  some  manner,  to  advert  to 
that  subject,  has  done  it  in  terms  which  I  will  read  to  you: 

The  words  are  not  alleged  to  be  either  false  or  defamatory,  be- 
cause it  is  not  within  the  power  of  any  man,  however  high  his 
official  position,  in  effect  to  slander  the  Congress  of  the  United 
States,  in  the  ordinary  sense  of  that  word,  so  as  to  call  on  Con- 
gress to  answer  as  to  the  truth  of  the  accusation. 

Considering  the  nature  of  our  Government,  considering 
the  experience  which  we  have  gone  through  on  this  sub- 
ject, that  is  a  pretty  lofty  claim.  Why,  if  the  Senate  please, 
if  you  go  back  to  the  time  of  the  Plantagenets  and  seek  for 
precedents  there,  you  will  not  find  so  lofty  a  claim  as  that. 
I  beg  leave  to  read  from  two  statutes,  the  first  being 
8  Edward  I,  ch.  34,  and  the  second  2  Richard  II,  ch.  1,  a 


266  THE  BRIEF 

short  passage.   The  statute,  3  Edward  I,  ch.  34,  after  the 
preamble,  enacts  — 

That  from  henceforth  none  be  so  hardy  to  tell  or  publish  any 
false  news  or  tales,  whereby  discord  or  occasion  of  discord  or 
slander  may  grow  between  the  king  and  his  people,  or  the  great 
men  of  the  realm;  and  he  that  doeth  so  shall  be  taken  and  kept  in 
until  he  hath  brought  him  into  court  which  was  the  first  author 
of  the  tale. 

The  statute  2  Richard  II,  c.  1,  s.  5,  enacted  with  some 
alterations  the  previous  statute.   It  commenced  thus : 

Of  devisors  of  false  news  and  of  horrible  and  false  lies  of  prel- 
ates, dukes,  earls,  barons,  and  other  nobles  and  great  men  of  the 
realm;  and  also  of  the  chancellor,  treasurer,  clerk  of  the  privy 
seal,  steward  of  the  king's  house,  justices  of  the  one  bench  or  of 
the  other,  and  of  other  great  officers  of  the  realm. 

The  great  men  of  the  realm  in  the  time  of  Richard  II 
were  protected  only  against  "horrible  and  false  lies,"  and 
when  we  arrive  in  the  course  of  our  national  experience 
during  the  war  with  France  and  the  administration  of  Mr. 
Adams  to  that  attempt  to  check,  not  free  speech,  but  free 
writing.  Senators  will  find  that,  although  it  applied  only 
to  written  libels,  it  contained  an  express  section  that  the 
truth  might  be  given  in  evidence.  That  was  a  law,  as 
Senators  know,  making  it  penal  by  written  libels  to  excite 
the  hatred  or  contempt  of  the  people  against  Congress 
among  other  offenses;  but  the  estimate  of  the  elevation  of 
Congress  above  the  people  was  not  so  high  but  that  it  was 
thought  proper  to  allow  a  defense  of  the  truth  to  be  given 
in  evidence.  I  beg  leave  to  read  from  this  sedition  act  a 
part  of  one  section  and  make  a  reference  to  another  to  sup- 
port the  correctness  of  what  I  have  said.  It  is  found  in 
Statutes-at-Large,  page  596 : 

That  if  any  person  shall  write,  print,  utter,  or  publish,  or  shall 
cause  or  procure  to  be  written,  printed,  uttered,  or  published,  or 


DEFENSE   OF   PRESIDENT   JOHNSON  267 

shall  knowingly  and  willingly  assist  or  aid  in  writing,  printing, 
uttering,  or  publishing  any  false,  scandalous,  and  malicious  writ- 
ing or  writings  against  the  Government  of  the  United  States,  or 
either  House  of  the  Congress  of  the  United  States,  or  the  Presi- 
dent of  the  United  States,  with  intent  to  defame  the  said  Govern- 
ment, or  either  House  of  the  said  Congress,  or  the  said  President, 
or  to  bring  them,  or  either  or  any  of  them  the  hatred  of  the  good 
people  of  the  United  States,  or  to  stir  up  sedition  within  the 
United  States,  or  to  excite  any  unlawful  combinations  therein, 
etc. 

Section  3  provides  — 

That  if  any  person  shall  be  prosecuted  under  this  act  for  the 
writing  or  publishing  any  libel  aforesaid,  it  shall  be  lawful  for  the 
defendant,  upon  the  trial  of  the  cause,  to  give  in  evidence  in  his 
defense  the  truth  of  the  matter  contained  in  the  publication 
charged  as  a  libel.  And  the  jury  who  shall  try  the  cause  shall  have 
a  right  to  determine  the  law  and  the  fact,  under  the  direction  of 
the  court,  as  in  other  cases. 

In  contrast  with  the  views  expressed  here,  I  desire  now  to 
read  from  the  fourth  volume  of  Mr.  Madison's  works,  pages 
542  and  547,  passages  which,  in  my  judgment,  are  as  mas- 
terly as  anything  Mr.  Madison  ever  wrote,  upon  the  rela- 
tions of  the  Congress  of  the  United  States  to  the  people  of 
the  United  States  in  contrast  with  the  relations  of  the  Gov- 
ernment of  Great  Britain  to  the  people  of  that  island;  and 
the  necessity  which  the  nature  of  our  Government  lays  us 
under  to  preserve  freedom  of  the  press  and  freedom  of 
speech: 

The  essential  difference  between  the  British  Government  and 
the  American  Constitution  will  place  this  subject  in  the  clearest 
light. 

In  the  British  Government  the  danger  of  encroachments  on  the 
rights  of  the  people  is  understood  to  be  confined  to  the  Executive 
Magistrate.  The  Representatives  of  the  people  in  the  Legislature 
are  only  exempt  themselves  from  distrust,  but  are  considered  as 
sufficient  guardians  of  the  rights  of  their  constituents  against  the 
danger  from  the  Executive.  Hence  it  is  a  principle  that  the  Par- 


268  THE  BRIEF 

liament  is  unlimited  in  its  power,  or,  in  their  own  language,  is 
omnipotent.  Hence,  too,  all  the  ramparts  for  protecting  the 
rights  of  the  people  —  such  as  their  Magna  Charta,  their  Bill  of 
Rights,  etc.  —  are  not  reared  against  the  Parliament,  but  against 
the  royal  prerogative.  They  are  merely  legislative  precautions 
against  Executive  usurpations.  Under  such  a  Government  as  this, 
an  exemption  of  the  press  from  previous  restraint,  by  licensers 
appointed  by  the  king,  is  all  the  freedom  that  can  be  secured  to  it. 
In  the  United  States  the  case  is  altogether  different.  The 
people,  not  the  Government,  possess  the  absolute  sovereignty. 
The  Legislature,  no  less  than  the  Executive,  is  under  limitations 
of  power.  Encroachments  are  regarded  as  possible  from  the  one 
as  well  as  from  the  other.  Hence,  in  the  United  States,  the  great 
and  essential  rights  of  the  people  are  secured  against  legislative  as 
well  as  against  executive  ambition.  They  are  secured,  not  by  laws 
paramount  to  prerogative,  but  by  constitutions  paramount  to 
laws.  This  security  of  the  freedom  of  the  press  requires  that  it 
should  be  exempt  not  only  from  previous  restraint  by  the  Exec- 
utive, as  in  Great  Britain,  but  from  legislative  restraint  also;  and 
this  exemption,  to  be  effectual,  must  be  an  exemption  not  only 
from  the  previous  inspection  of  licenses,  but  from  the  subsequent 
penalty  of  laws. 

One  other  passage  on  page  547,  which  has  an  extraordi- 
nary application  to  the  subject  now  before  you: 

1.  The  Constitution  supposes  that  the  President,  the  Congress, 
and  each  of  its  Houses  may  not  discharge  their  trusts,  either  from 
defect  of  judgment  or  other  causes.  Hence  they  are  all  made 
responsible  to  their  constituents  at  the  returning  periods  of  elec- 
tion; and  the  President,  who  is  singly  intrusted  with  very  great 
powers,  is,  as  a  further  guard,  subjected  to  an  intermediate  im- 
peachment. 

2.  Should  it  happen,  as  the  Constitution  supposes  it  may 
happen,  that  either  of  these  branches  of  the  Government  may 
not  have  duly  discharged  its  trust,  it  is  natural  and  proper  that, 
according  to  the  cause  and  degree  of  their  faults,  they  should  be 
brought  into  contempt  or  disrepute,  and  Lacur  the  hatred  of  the 
people. 

3.  Whether  it  has,  in  any  case,  happened  that  the  proceedings 
of  either  or  all  of  those  branches  evince  such  a  violation  of  duty 
as  to  justify  a  contempt,  a  disrepute,  or  hatred  among  the  people. 


DEFENSE   OF   PRESIDENT   JOHNSON  269 

can  only  be  determined  by  a  free  examination  thereof,  and  a  free 
communication  among  the  people  thereon. 

4.  Whenever  it  may  have  actually  happened  that  proceedings 
of  this  sort  are  chargeable  on  all  or  either  of  the  branches  of  the 
Government,  it  is  the  duty,  as  well  as  right,  of  intelligent  and 
faithful  citizens  to  discuss  and  promulge  them  freely,  as  well  to 
control  them  by  the  censorship  of  the  public  opinion  as  to  promote 
a  remedy  according  to  the  rules  of  the  Constitution.  And  it  can- 
not be  avoided  that  those  who  are  to  apply  the  remedy  must  feel, 
in  some  degree,  a  contempt  or  hatred  against  the  transgressing 
party. 

These  observations  of  Mr.  Madison  were  made  in  respect 
to  the  freedom  of  the  press.  There  were  two  views  enter- 
tained at  the  time  when  the  sedition  law  was  passed  con- 
cerning the  power  of  Congress  over  this  subject.  The  one 
view  was  that  when  the  Constitution  spoke  of  freedom  of 
the  press  it  referred  to  the  common-law  definition  of  that 
freedom.  That  was  the  view  which  Mr.  Madison  was  con- 
troverting in  one  of  the  passages  which  I  have  read  to  you. 
The  other  view  was  that  the  common-law  definition  could 
not  be  deemed  applicable,  and  that  the  freedom  provided 
for  by  the  Constitution,  so  far  as  the  action  of  Congress  was 
concerned,  was  an  absolute  freedom  of  the  press.  But  no 
one  ever  imagined  that  freedom  of  speech,  in  contradistinc- 
tion from  written  libel,  could  be  restrained  by  a  law  of 
Congress;  for  whether  you  treat  the  prohibition  in  the  Con- 
stitution as  absolute  in  itself  or  whether  you  refer  to  the 
common  law  for  a  definition  of  its  limits  and  meaning,  the 
result  will  be  the  same.  Under  the  common  law  no  man  was 
ever  punished  criminally  for  spoken  words.  If  he  slandered 
his  neighbor  and  injured  him,  he  must  make  good  in  dam- 
ages to  his  neighbor  the  injury  he  had  done;  but  there  was 
no  such  thing  at  the  common  law  as  an  indictment  for 
spoken  words.  So  that  this  prohibition  in  the  Constitution 
against  any  legislation  by  Congress  in  restraint  of  the  free- 
dom of  speech  is  necessarily  an  absolute  prohibition;  and 


27d  [  THE  BRIEF 

therefore  this  is  a  case  not  only  where  there  is  no  law  made 
prior  to  the  act  to  punish  the  act,  but  a  case  where  Congress 
is  expressly  prohibited  from  making  any  law  to  operate 
even  on  subsequent  acts. 

What  is  the  law  to  be?  Suppose  it  is,  as  the  honorable 
Managers  seem  to  think  it  should  be,  the  sense  of  propriety 
of  each  Senator  appealed  to.  What  is  it  to  be?  The  only 
rule  I  have  heard  —  the  only  rule  which  can  be  announced 
—  is  that  you  may  require  the  speaker  to  speak  properly. 
Who  are  to  be  the  judges  whether  he  speaks  properly?  In 
this  case  the  Senate  of  the  United  States  on  the  presenta- 
tion of  the  House  of  Representatives  of  the  United  States; 
and  that  is  supposed  to  be  the  freedom  of  speech  secured  by 
this  absolute  prohibition  of  the  Constitution.  That  is  the 
same  freedom  of  speech,  Senators,  in  consequence  of  which 
thousands  of  men  went  to  the  scaffold  under  the  Tudors 
and  the  Stuarts.  That  is  the  same  freedom  of  speech 
which  caused  thousands  of  heads  of  men  and  of  women  to 
roll  from  the  guillotine  in  France.  That  is  the  same  free- 
dom of  speech  which  has  caused  in  our  day  more  than  once 
"order  to  reign  in  Warsaw."  The  persons  did  not  speak 
properly  in  the  apprehension  of  the  judges  before  whom 
they  were  brought.  Is  that  the  freedom  of  speech  intended 
to  be  secured  by  our  Constitution? 

Mr.  Chief  Justice  and  Senators,  I  have  to  detain  you  but 
a  very  short  time  longer,  and  that  is  by  a  few  observations 
concerning  the  eleventh  article,  and  they  will  be  very  few, 
for  the  reason  that  the  eleventh  article,  as  I  understand  it, 
contains  nothing  new  which  needs  any  notice  from  me.  It 
appears  by  the  official  copy  of  the  articles  which  is  before 
us,  the  printed  copy,  that  this  article  was  adopted  at  a  later 
period  than  the  preceding  nine  articles,  and  I  suppose  it  has 
that  appearance,  that  the  honorable  Managers,  looking 
over  the  work  they  had  already  performed,  perhaps  not 
feeling  perfectly  satisfied  to  leave  it  in  the  shape  in  which  it 


DEFENSE   OF  PRESIDENT   JOHNSON  271 

then  stood,  came  to  the  conclusion  to  add  this  eleventh 
article,  and  they  have  compounded  it  out  of  the  materials 
which  they  had  previously  worked  up  into  the  others.  In 
the  first  place,  they  said,  here  are  the  speeches;  we  will  have 
something  about  them;  and  accordingly  they  begin  by  the 
allegation  that  the  President  at  the  Executive  Mansion,  on 
a  certain  occasion,  made  a  speech,  and  without  giving  his 
words,  but  it  is  attributed  to  him  that  he  had  an  intention 
to  declare  that  this  was  not  a  Congress  within  the  meaning 
of  the  Constitution;  all  of  which  is  denied  in  his  answer,  and 
there  is  no  proof  to  support  it.  The  President,  by  his  whole 
course  of  conduct,  has  shown  that  he  could  have  enter- 
tained no  such  intention  as  that.  He  has  explained  that 
fully  in  his  answer,  and  I  do  not  think  it  necessary  to  repeat 
the  explanation. 

Then  they  come  to  the  old  matter  of  the  removal  of  Mr. 
Stanton.  They  say  he  made  this  speech  denying  the  com- 
petency of  Congress  to  legislate,  and  following  up  its  intent 
he  endeavored  to  remove  Mr.  Stanton.  I  have  sufficiently 
discussed  that,  and  I  shall  not  weary  the  patience  of  the 
Senate  by  doing  so  any  further. 

Then  they  say  that  he  made  this  speech  and  followed  up 
its  intent  by  endeavoring  to  get  possession  of  the  money 
appropriated  for  the  military  service  of  the  United  States. 
I  have  said  all  I  desire  to  say  upon  that. 

Then  they  say  that  he  made  it  with  the  intent  to  obstruct 
what  is  called  the  law  *'for  the  better  government  of  the 
rebel  States,"  passed  in  March,  1867,  and  in  support  of  that 
they  have  offered  a  telegram  to  him  from  Governor  Parsons 
and  an  answer  to  that  telegram  from  the  President,  upon 
the  subject  of  an  amendment  of  the  Constitution,  sent  in 
January  before  the  March  when  the  law  came  into  existence, 
and,  so  far  as  I  know,  that  is  the  only  evidence  which  they 
have  offered  upon  that  subject.  I  leave,  therefore,  with  these 
remarks,  that  article  for  the  consideration  of  the  Senate. 


272  THE  BRIEF 

It  must  be  unnecessary  for  me  to  say  anything  concern- 
ing the  importance  of  this  case,  not  only  now  but  in  the 
future.  It  must  be  apparent  to  every  one,  in  any  way  con- 
nected with  or  concerned  in  this  trial,  that  this  is  and  will 
be  the  most  conspicuous  instance  which  ever  has  been  or 
ever  can  be  expected  to  be  found  of  American  justice  or 
American  injustice,  of  that  justice  which  Mr.  Burke  says 
is  the  great  standing  policy  of  all  civilized  States,  or  of  that 
injustice  which  is  sure  to  be  discovered  and  which  makes 
even  the  wise  man  mad,  and  which,  in  the  fixed  and  im- 
mutable order  of  God's  providence,  is  certain  to  return  to 
plague  its  inventors. 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    273 


6.     SPEECH    IN   BEHALF   OF  JOHN    STOCKDALE 

When  tried  for  a  libel  on  the  House  of  Commons.  Delivered  bejore 
the  Court  of  King's  Bench,  December  9, 1789,  by  Lord  Er shine. ^ 

Mr.  Stockdale  was  a  London  bookseller,  who  published  a 
pamphlet,  written  by  a  Scottish  clergyman  named  Logan,  while 
the  trial  of  Warren  Hastings  was  going  on,  reflecting  severely  on 
the  House  of  Commons  for  their  proceedings  therein.  Mr.  Fox, 
one  of  the  managers  of  the  impeachment,  brought  this  publication 
before  the  House,  as  impugning  the  motives  of  those  who  had  pro- 
posed the  trial,  and  moved  that  the  Attorney-General  be  directed 
to  prosecute  the  author  and  publisher  of  the  pamphlet  for  a  libel 
on  the  Commons.  The  fact  of  publication  was  admitted,  and  the 
case,  therefore,  turned  on  the  true  nature  of  the  crime  alleged. 

In  this  speech  Mr.  Erskine  has  stated,  with  admirable  precision 
and  force,  the  great  principles  involved  in  the  law  of  libel :  namely, 
that  every  composition  of  this  kind  is  to  be  taken  as  a  whole,  and 
not  judged  of  by  detached  passages;  that  if  its  general  spirit  and 
intention  are  good,  it  is  not  to  be  punished  for  hasty  or  rash  ex- 
pressions thrown  off  in  the  heat  of  discussion,  and  which  might 
even  amount  to  libels  when  considered  by  themselves;  that  the 
interests  of  society  demand  great  freedom  in  canvassing  the 
measures  of  Government;  and  that  if  a  publication  is  decent  in 
its  language  and  peaceable  in  its  import,  much  indulgence  ought 
to  be  shown  toward  its  author,  when  his  real  design  is  to  discuss 
the  subject,  and  not  to  bring  contempt  on  the  Government  — 
though  in  doing  so  he  may  be  led,  by  the  strength  of  his  feelings, 
to  transcend  the  bounds  of  candor  and  propriety. 

This  is  universally  considered  the  finest  of  Mr.  Erskine's 
speeches,  "whether  we  regard  the  wonderful  skill  with  which  the 
argument  is  conducted  —  the  soundness  of  the  principles  laid 
down,  and  their  happy  application  to  the  case  —  the  exquisite 
fancy  with  which  they  are  embellished  and  illustrated  —  or  the 
powerful  and  touching  language  in  which  they  are  conveyed.  It 
is  justly  regarded  by  all  English  lawyers  as  a  consummate  speci- 
men of  the  art  of  addressing  a  jury  —  as  a  standard,  a  sort  of 
precedent  for  treating  cases  of  libel,  by  keeping  which  in  his  eye 
a  man  may  hope  to  succeed  in  special  pleading  his  client's  case 

1  From  Select  British  Eloquence,  by  Chauncey  A.  Goodrich,  D.D. 
(Harper  and  Brothers,  1874) ;  by  the  kind  permission  of  the  publishers. 


274  THE  BRIEF 

within  its  principle,  who  is  destitute  of  the  talent  required  even 
to  comprehend  the  other  and  higher  merits  of  his  original.  By 
these  merits  it  is  recommended  to  lovers  of  pure  diction  —  of 
copious  and  animated  description  —  of  lively,  picturesque,  and 
fanciful  illustration  —  of  all  that  constitutes,  if  we  may  so  speak, 
the  poetry  of  eloquence"  {Edinburgh  RevieWy  vol.  xvi,  p.  109). 
—  Goodrich. 

Gentlemen  of  the  Jury: 

Mr.  Stockdale,  who  is  brought  as  a  criminal  before  you 
for  the  publication  of  this  book,  has,  by  employing  me  as 
his  advocate,  reposed  what  must  appear  to  many  an  ex- 
traordinary degree  of  confidence;  since,  although  he  well 
knows  that  I  am  personally  connected  in  friendship  with 
most  of  those  whose  conduct  and  opinions  are  principally 
arraigned  by  its  author,  he  nevertheless  commits  to  my 
hands  his  defense  and  justification. 

From  a  trust  apparently  so  delicate  and  singular,  vanity 
is  but  too  apt  to  whisper  an  application  to  some  fancied 
merit  of  one's  own;  but  it  is  proper,  for  the  honor  of  the 
English  bar,  that  the  world  should  know  that  such  things 
happen  to  all  of  us  daily,  and  of  course;  and  that  the  de- 
fendant, without  any  knowledge  of  me,  or  any  confidence 
that  was  personal,  was  only  not  afraid  to  follow  up  an  acci- 
dental retainer,  from  the  knowledge  he  has  of  the  general 
character  of  the  profession.  Happy,  indeed,  is  it  for  this 
country  that,  whatever  interested  divisions  may  charac- 
terize other  placeSy  of  which  I  may  have  occasion  to  speak 
to-day,  however  the  counsels  of  the  highest  departments  of 
the  state  may  be  occasionally  distracted  by  personal  con- 
siderations, they  never  enter  these  walls  to  disturb  the  ad- 
ministration of  justice.  Whatever  may  be  our  public  prin- 
ciples, or  the  private  habits  of  our  lives,  they  never  cast 
even  a  shade  across  the  path  of  our  professional  duties. 
If  this  be  the  characteristic  even  of  the  bar  of  an  English 
court  of  justice,  what  sacred  impartiality  may  not  every 
man  expect  from  its  jurors  and  its  bench.? 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    275 

As,  from  the  indulgence  which  the  court  was  yesterday 
pleased  to  give  to  my  indisposition,  this  information  was 
not  proceeded  on  when  you  were  attending  to  try  it,  it  is 
probable  you  were  not  altogether  inattentive  to  what 
passed  at  the  trial  of  the  other  indictment,  prosecuted  also 
by  the  House  of  Commons.  Without,  therefore,  a  restate- 
ment of  the  same  principles,  and  a  similar  quotation  of 
authorities  to  support  them,  I  need  only  remind  you  of  the 
law  applicable  to  this  subject,  as  it  was  then  admitted  by 
the  Attorney-General;  in  concession  to  my  propositions, 
and  confirmed  by  the  higher  authority  of  the  court,  namely, 
that  every  information  or  indictment  must  contain  such  a 
description  of  the  crime  that. 

First,  the  defendant  may  know  what  crime  it  is  which  he 
is  called  upon  to  answer. 

Secondly,  the  jury  may  appear  to  be  warranted  in  their 
conclusion  of  guilty  or  not  guilty. 

And,  thirdly,  the  court  may  see  such  a  precise  and  defi- 
nite transgression  upon  the  record  as  to  be  able  to  apply 
the  punishment  which  judicial  discretion  may  dictate,  or 
which  positive  law  may  inflict. 

It  was  admitted  also  to  follow  as  a  mere  corollary  from 
these  propositions,  that  where  an  information  charges  a 
writing  to  be  composed  or  published  of  and  concerning  the 
Commons  of  Great  Britain,  with  an  intent  to  bring  that 
body  into  scandal  and  disgrace  with  the  public,  the  author 
cannot  be  brought  within  the  scope  of  such  a  charge,  unless 
the  jury,  on  examination  and  comparison  of  the  whole 
matter  written  or  published,  shall  be  satisfied  that  the  par- 
ticular passages  charged  as  criminal,  when  explained  by  the 
context,  and  considered  as  part  of  one  entire  work,  were 
meant  and  intended  by  the  author  to  vilify  the  House  of 
Commons  as  a  body,  and  were  written  of  and  concerning 
them  in  Parliament  assembled. 

These  principles  being  settled,  we  are  now  to  see  what  the 
present  information  is. 


276  THE  BRIEF 

It  charges  that  the  defendant  —  "  unlawfully,  wickedly, 
and  maliciously  devising,  contriving,  and  intending  to 
asperse,  scandalize,  and  vilify  the  Commons  of  Great  Brit- 
ain in  Parliament  assembled;  and  most  wickedly  and  auda- 
ciously to  represent  their  proceedings  as  corrupt  and  unjust, 
and  to  make  it  believed  and  thought  as  if  the  Commons  of 
Great  Britain  in  Parliament  assembled  were  a  most  wicked, 
tyrannical,  base,  and  corrupt  set  of  persons,  and  to  bring 
them  into  disgrace  with  the  public"  —  the  defendant  pub- 
lished —  What  ?  Not  those  latter  ends  of  sentences  which 
the  Attorney-General  has  read  from  his  brief,  as  if  they  had 
followed  one  another  in  order  in  this  book.  Not  those  scraps 
and  tails  of  passages  which  are  patched  together  upon  this 
record,  and  pronounced  in  one  breath,  as  if  they  existed 
without  intermediate  matter  in  the  same  page,  and  without 
context  anywhere.  No!  This  is  not  the  accusation,  even 
mutilated  as  it  is;  for  the  information  charges  that,  with  in- 
tention to  vilify  the  House  of  Commons,  the  defendant  pub- 
lished the  whole  book,  describing  it  on  the  record  by  its 
title:  "A  Review  of  the  Principal  Charges  against  Warren 
Hastings,  Esq.,  late  Governor-General  of  Bengal " :  in  which, 
among  other  things,  the  matter  particularly  selected  is  to 
be  found. 

Your  inquiry,  therefore,  is  not  confined  to  this,  whether 
the  defendant  published  those  selected  parts  of  it;  and 
whether,  looking  at  them  as  they  are  distorted  by  the  in- 
formation, they  carry,  in  fair  construction,  the  sense  and 
meaning  which  the  innuendoes  put  upon  them;  but  whether 
the  author  of  the  entire  work  —  I  say  the  author,  since,  if  he 
could  defend  himself,  the  publisher  unquestionably  can  — 
whether  the  author  wrote  the  volume  which  I  hold  in  my 
hand,  as  a  free,  manly,  bona-fide  disquisition  of  criminal 
charges  against  his  fellow-citizen.  Or  whether  the  long, 
eloquent  discussion  of  them,  which  fills  so  many  pages,  was 
a  mere  cloak  and  cover  for  the  introduction  of  the  supposed 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    277 

scandal  imputed  to  the  selected  passages;  the  mind  of  the 
writer  all  along  being  intent  on  traducing  the  House  of  Com- 
mons, and  not  on  fairly  answering  their  charges  against 
Mr.  Hastings.  This,  gentlemen,  is  the  principal  matter 
for  your  consideration.  And  therefore,  if,  after  you  shall 
have  taken  the  book  itself  into  the  chamber  which  will  be 
provided  for  you,  and  shall  have  read  the  whole  of  it  with 
impartial  attention — if,  after  the  performance  of  this  duty, 
you  can  return  here,  and  with  clear  consciences  pro- 
nounce upon  your  oaths  that  the  impression  made  upon 
you  by  these  pages  is,  that  the  author  wrote  them  with  the 
wicked,  seditious,  and  corrupt  intentions  charged  by  the 
information  —  you  have  then  my  full  permission  to  find  the 
defendant  guilty.  But  if,  on  the  other  hand,  the  general 
tenor  of  the  composition  shall  impress  you  with  respect  for 
the  author,  and  point  him  out  to  you  as  a  man  mistaken, 
perhaps,  himself,  but  not  seeking  to  deceive  others  —  if 
every  line  of  the  work  shall  present  to  you  an  intelligent, 
animated  mind,  glowing  with  a  Christian  compassion  to- 
ward a  fellow-man,  whom  he  believed  to  be  innocent,  and 
with  a  patriot  zeal  for  the  liberty  of  his  country,  which  he 
considered  as  wounded  through  the  sides  of  an  oppressed 
fellow-citizen  —  if  this  shall  be  the  impression  on  your  con- 
sciences and  understandings,  when  you  are  called  upon 
to  deliver  your  verdict  —  then  hear  from  me  that  you  not 
only  work  private  injustice,  but  break  up  the  press  of  Eng- 
land, and  surrender  her  rights  and  liberties  forever,  if  you 
convict  the  defendant. 

Gentlemen,  to  enable  you  to  form  a  true  judgment  of  the 
meaning  of  this  book  and  of  the  intention  of  its  author,  and 
to  expose  the  miserable  juggle  that  is  played  off  in  the  in- 
formation, by  the  combination  of  sentences  which,  in  the 
work  itself,  have  no  bearing  upon  one  another,  I  will  first 
give  you  the  publication  as  it  is  charged  upon  the  rec- 
ord, and  presented  by  the  Attorney-General  in  opening  the 


278  THE  BRIEF 

case  for  the  Crown;  and  I  will  then,  by  reading  the  inter- 
jacent matter  which  is  studiously  kept  out  of  view,  convince 
you  of  its  true  interpretation. 

The  information,  beginning  with  the  first  page  of  the 
book,  charges  as  a  libel  upon  the  House  of  Commons  the 
following  sentence: 

The  House  of  Commons  has  now  given  its  final  decision  with 
regard  to  the  merits  and  demerits  of  Mr.  Hastings.  The  Grand 
Inquest  of  England  have  delivered  their  charges,  and  preferred 
their  impeachment;  their  allegations  are  referred  to  proof;  and 
from  the  appeal  to  the  collective  wisdom  and  justice  of  the  nation 
in  the  supreme  tribunal  of  the  kingdom,  the  question  comes  to  be 
determined  whether  Mr.  Hastings  be  guilty  or  not  guilty? 

It  is  but  fair,  however,  to  admit  that  this  first  sentence, 
which  the  most  ingenious  malice  cannot  torture  into  a 
criminal  construction,  is  charged  by  the  information  rather 
as  introductory  to  what  is  made  to  follow  it  than  as  libelous 
in  itself.  For  the  Attorney-General,  from  this  introductory 
passage  in  the  first  page,  goes  on  at  a  leap  to  page  thir- 
teenth, and  reads  —  almost  without  a  stop,  as  if  it  immedi- 
ately followed  the  other  —  this  sentence: 

What  credit  can  we  give  to  multiplied  and  accumulated  charges, 
when  we  find  that  they  originate  from  misrepresentation  and 
falsehood? 

From  these  two  passages  thus  standing  together,  without 
the  intervenient  matter  which  occupies  thirteen  pages,  one 
would  imagine  that  —  instead  of  investigating  the  prob- 
ability or  improbability  of  the  guilt  imputed  to  Mr.  Hast- 
ings —  instead  of  carefully  examining  the  charges  of  the 
Commons,  and  the  defense  of  them  which  had  been  deliv- 
ered before  them,  or  which  was  preparing  for  the  Lords  — 
the  author  had  immediately,  and  in  a  moment  after  stating 
the  mere  fact  of  the  impeachment,  decided  that  the  act 
of  the  Commons  originated  from  misrepresentation  and 
falsehood. 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    279 

Gentlemen,  in  the  same  manner  a  veil  is  cast  over  all  that 
is  written  in  the  next  seven  pages;  for,  knowing  that  the 
context  would  help  to  the  true  construction,  not  only  of  the 
passages  charged  before,  but  of  those  in  the  sequel  of  this 
information,  the  Attorney-General,  aware  that  it  would 
convince  every  man  who  read  it  that  there  was  no  inten- 
tion in  the  author  to  calumniate  the  House  of  Commons, 
passes  over,  by  another  leap,  to  page  twenty;  and  in  the 
same  manner,  without  drawing  his  breath,  and  as  if  it  di- 
rectly followed  the  two  former  sentences  in  the  first  and 
thirteenth  pages,  reads  from  page  twentieth : 

An  impeachment  of  error  in  judgment  with  regard  to  the 
quantum  of  a  fine,  and  for  an  intention  that  never  was  executed 
and  never  known  to  the  offending  party,  characterizes  a  tribunal 
of  inquisition  rather  than  a  Court  of  Parliament. 

From  this  passage,  by  another  vault,  he  leaps  over  one- 
and-thirty  pages  more,  to  page  fifty-one,  where  he  reads 
the  following  sentence,  which  he  mainly  relies  on,  and 
upon  which  I  shall  by  and  by  trouble  you  with  some  obser- 
vations : 

Thirteen  of  them  passed  in  the  House  of  Commons,  not  only 
without  investigation,  but  without  being  read;  and  the  votes  were 
given  without  inquiry,  argument,  or  conviction.  A  majority  had 
determined  to  impeach;  opposite  parties  met  each  other,  and 
"jostled  in  the  dark,  to  perplex  the  political  drama,  and  bring  the 
hero  to  a  tragic  catastrophe." 

From  thence,  deriving  new  vigor  from  every  exertion,  he 
makes  his  last  grand  stride  over  forty-four  pages  more, 
almost  to  the  end  of  the  book,  charging  a  sentence  in  the 
ninety-fifth  page. 

So  that  out  of  a  volume  of  one  hundred  and  ten  pages, 
the  defendant  is  only  charged  with  a  few  scattered  frag- 
ments of  sentences,  picked  out  of  three  or  four.  Out  of  a 
work  consisting  of  about  two  thousand  five  hundred  and 
thirty  lines,  of  manly,  spirited  eloquence,  only  forty  or  fifty 


280  THE  BRIEF 

lines  are  culled  from  different  parts  of  it,  and  artfully  put 
together,  so  as  to  rear  up  a  libel,  out  of  a  false  context,  by  a 
supposed  connection  of  sentences  with  one  another,  which 
are  not  only  entirely  independent,  but  which,  when  com- 
pared with  their  antecedents,  bear  a  totally  different  con- 
struction. In  this  manner,  the  greatest  works  upon  gov- 
ernment, the  most  excellent  books  of  science,  the  sacred 
Scriptures  themselves,  might  be  distorted  into  libels,  by 
forsaking  the  general  context,  and  hanging  a  meaning  upon 
selected  parts.  Thus,  as  in  the  text  put  by  Algernon  Sid- 
ney, "The  fool  hath  said  in  his  heart,  there  is  no  God,"  the 
Attorney-General,  on  the  principle  of  the  present  proceed- 
ing against  this  pamphlet,  might  indict  the  publisher  of  the 
Bible  for  blasphemously  denying  the  existence  of  heaven, 
in  printing,  "There  is  no  God,"  for  these  words  alone,  with- 
out the  context,  would  be  selected  by  the  information,  and 
the  Bible,  like  this  book,  would  be  underscored  to  meet  it. 
Nor  could  the  defendant,  in  such  a  case,  have  any  possible 
defense,  unless  the  jury  were  permitted  to  see,  by  the  book 
itself,  that  the  verse,  instead  of  denying  the  existence  of  the 
Divinity,  only  imputed  that  imagination  to  a  fool. 

Gentlemen,  having  now  gone  through  the  Attorney- 
General's  reading,  the  book  shall  presently  come  forward 
and  speak  for  itself.  But  before  I  can  venture  to  lay  it  be- 
fore you,  it  is  proper  to  call  your  attention  to  how  matters 
stood  at  the  time  of  its  publication:  without  which  the 
author's  meaning  and  intention  cannot  possibly  be  under- 
stood. 

The  Commons  of  Great  Britain,  in  Parliament  assem- 
bled, had  accused  Mr.  Hastings,  as  Governor-General  of 
Bengal,  of  high  crimes  and  misdemeanors;  and  their  juris- 
diction for  that  high  purpose  of  national  justice  was  un- 
questionably competent.  But  it  is  proper  you  should  know 
the  nature  of  this  inquisitorial  capacity.  The  Commons, 
in  voting  an  impeachment,  may  be  compared  to  a  grand 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    281 

jury  finding  a  bill  of  indictment  for  the  Crown.  Neither  the 
one  nor  the  other  can  be  supposed  to  proceed  but  upon  the 
matter  which  is  brought  before  them;  neither  of  them  can 
find  guilt  without  accusation,  nor  the  truth  of  accusation 
without  evidence.  When,  therefore,  we  speak  of  the 
"accuser,"  or  "accusers,"  of  a  person  indicted  for  any 
crime,  although  the  grand  jury  are  the  accusers  inform,  by 
giving  effect  to  the  accusation,  yet,  in  common  parlance, 
we  do  not  consider  them  as  the  responsible  authors  of  the 
prosecution.  If  I  were  to  write  of  a  most  wicked  indict- 
ment, found  against  an  innocent  man,  which  was  prepar- 
ing for  trial,  nobody  who  read  it  would  conceive  I  meant 
to  stigmatize  the  grand  jury  that  found  the  bill;  but  it 
would  be  inquired  immediately,  who  was  the  prosecutor, 
and  who  were  the  witnesses  on  the  back  of  it?  In  the  same 
manner,  I  mean  to  contend,  that  if  this  book  is  read  with 
only  common  attention,  the  whole  scope  of  it  will  be  dis- 
covered to  be  this :  that,  in  the  opinion  of  the  author,  Mr. 
Hastings  had  been  accused  of  maladministration  in  India, 
from  the  heat  and  spleen  of  political  divisions  in  Parlia- 
ment, and  not  from  any  zeal  for  national  honor  or  justice; 
that  the  impeachment  did  not  originate  from  government, 
but  from  a  faction  banded  against  it,  which,  by  misrepre- 
sentation and  violence,  had  fastened  it  on  an  unwilling 
House  of  Commons;  that,  prepossessed  with  this  sentiment 
(which,  however  unfounded,  makes  no  part  of  the  present 
business,  since  the  publisher  is  not  called  before  you  for 
defaming  individual  members  of  the  Commons,  but  for  a 
contempt  of  the  Commons  as  a  body),  the  author  pursues 
the  charges,  article  by  article;  enters  into  a  warm  and  ani- 
mated vindication  of  Mr.  Hastings,  by  regular  answers  to 
each  of  them;  and  that,  as  far  as  the  mind  and  soul  of  a  man 
can  be  visible,  I  might  almost  say  embodied  in  his  writings, 
his  intention  throughout  the  whole  volume  appears  to  have 
been  to  charge  with  injustice  the  private  accusers  of  Mr. 


282  THE  BRIEF 

Hastings,  and  not  the  House  of  Commons  as  a  body;  which 
undoubtedly  rather  reluctantly  gave  way  to,  than  heartily 
adopted  the  impeachment.  This  will  be  found  to  be  the 
palpable  scope  of  the  book;  and  no  man  who  can  read  Eng- 
lish, and  who,  at  the  same  time,  will  have  the  candor  and 
common  sense  to  take  up  his  impressions  from  what  is 
written  in  it,  instead  of  bringing  his  own  along  with  him 
to  the  reading  of  it,  can  possibly  understand  it  otherwise. 
But  it  may  be  said,  admitting  this  to  be  the  scope  and 
design  of  the  author,  what  right  had  he  to  canvass  the  mer- 
its of  an  accusation  upon  the  records  of  the  Commons, 
more  especially  while  it  was  in  the  course  of  legal  proce- 
dure? This,  I  confess,  might  have  been  a  serious  question, 
but  the  Commons,  as  prosecutors  of  this  information,  seem 
to  have  waived  or  forfeited  their  right  to  ask  it.  Before  they 
sent  the  Attorney-General  into  this  place,  to  punish  the 
publication  of  answers  to  their  charges,  they  should  have 
recollected  that  their  own  want  of  circumspection  in  the 
maintenance  of  their  privileges,  and  in  the  protection  of 
persons  accused  before  them,  had  given  to  the  public  the 
charges  themselves,  which  should  have  been  confined  to 
their  own  journals.  The  course  and  practice  of  Parlia- 
ment might  warrant  the  printing  of  them  for  the  use  of 
their  own  members;  but  there  the  publication  should  have 
stopped,  and  all  further  progress  been  resisted  by  author- 
ity. If  they  were  resolved  to  consider  answers  to  their 
charges  as  a  contempt  of  their  privileges,  and  to  punish 
the  publication  of  them  by  such  severe  prosecutions,  it 
would  have  well  become  them  to  have  begun  first  with 
those  printers  who,  by  publishing  the  charges  themselves 
throughout  the  whole  kingdom,  or  rather  throughout  the 
whole  civilized  world,  were  anticipating  the  passions  and 
judgments  of  the  public  against  a  subject  of  England  upon 
his  trial,  so  as  to  make  the  publication  of  answers  to  them 
not  merely  a  privilege,  but  a  debt  and  duty  to  humanity 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE     283 

and  justice.  The  Commons  of  Great  Britain  claimed  and 
exercised  the  privileges  of  questioning  the  innocence  of 
Mr.  Hastings  by  their  impeachment :  but  as,  however  ques- 
tioned, it  was  still  to  be  presumed  and  protected,  until 
guilt  was  established  by  a  judgment,  he  whom  they  had 
accused  had  an  equal  claim  upon  their  justice,  to  guard 
him  from  prejudice  and  misrepresentation  until  the  hour 
of  trial. 

Had  the  Commons,  therefore,  by  the  exercise  of  their 
high,  necessary,  and  legal  privileges,  kept  the  public  aloof 
from  all  canvass  of  their  proceedings,  by  an  early  punish- 
ment of  printers,  who,  without  reserve  or  secrecy,  had  sent 
out  the  charges  into  the  world  from  a  thousand  presses 
in  every  form  of  publication,  they  would  have  then  stood 
upon  ground  to-day  from  whence  no  argument  of  policy  or 
justice  could  have  removed  them;  because  nothing  can  be 
more  incompatible  with  either  than  appeals  to  the  many 
upon  subjects  of  judicature,  which,  by  common  consent,  a 
few  are  appointed  to  determine,  and  which  must  be  deter- 
mined by  facts  and  principles,  which  the  multitude  have 
neither  leisure  nor  knowledge  to  investigate.  But  then,  let 
it  be  remembered  that  it  is  for  those  who  have  the  author- 
ity to  accuse  and  punish,  to  set  the  example  of,  and  to  en- 
force this  reserve,  which  is  so  necessary  for  the  ends  of 
justice.  Courts  of  law,  therefore,  in  England,  never  endure 
the  publication  of  their  records.  A  prosecutor  of  an  indict- 
ment would  be  attached  for  such  a  publication;  and,  upon 
the  same  principle,  a  defendant  would  be  punished  for 
anticipating  the  justice  of  his  country,  by  the  publication 
of  his  defense,  the  public  being  no  party  to  it,  until  the 
tribunal  appointed  for  its  determination  be  open  for  its 
decision. 

Gentlemen,  you  have  a  right  to  take  judicial  notice  of 
these  matters,  without  the  proof  of  them  by  witnesses.  For 
jurors  may  not  only,  without  evidence,  found  their  verdicts 


284  THE  BRIEF 

on  facts  that  are  notorious,  but  upon  what  they  know  pri- 
vately themselves,  after  revealing  it  upon  oath  to  one  an- 
other. Therefore,  you  are  always  to  remember  that  this 
book  was  written  when  the  charges  against  Mr.  Hastings, 
to  which  it  is  an  answer,  were,  to  the  knowledge  of  the  Com- 
mons (for  we  cannot  presume  our  watchmen  to  have  been 
asleep),  publicly  hawked  about  in  every  pamphlet,  maga- 
zine, and  newspaper  in  the  kingdom.  You  well  know  with 
what  a  curious  appetite  these  charges  were  devoured  by 
the  whole  public,  interesting  as  they  were,  not  only  from 
their  importance,  but  from  the  merit  of  their  composition; 
certainly  not  so  intended  by  the  honorable  and  excellent 
composer  to  oppress  the  accused,  but  because  the  common- 
est subjects  swell  into  eloquence  under  the  touch  of  his 
sublime  genius.  Thus,  by  the  remissness  of  the  Commons, 
who  are  now  the  prosecutors  of  this  information,  a  subject 
of  England,  who  was  not  even  charged  with  contumacious 
resistance  to  authority,  much  less  a  proclaimed  outlaw,  and 
therefore  fully  entitled  to  every  protection  which  the  cus- 
toms and  statutes  of  the  kingdom  hold  out  for  the  protec- 
tion of  British  liberty,  saw  himself  pierced  with  the  arrows 
of  thousands  and  ten  thousands  of  libels. 

Gentlemen,  before  I  venture  to  lay  the  book  before  you, 
it  must  be  yet  further  remembered  (for  the  fact  is  equally 
notorious)  that  under  these  inauspicious  circumstances  the 
trial  of  Mr.  Hastings  at  the  bar  of  the  Lords  had  actually 
commenced  long  before  its  publication. 

There  the  most  august  and  striking  spectacle  was  daily 
exhibited  which  the  world  ever  witnessed.  A  vast  stage  of 
justice  was  erected,  awful  from  its  high  authority,  splendid 
from  its  illustrious  dignity,  venerable  from  the  learning  and 
wisdom  of  its  judges,  captivating  and  affecting  from  the 
mighty  concourse  of  all  ranks  and  conditions  which  daily 
flocked  into  it,  as  into  a  theater  of  pleasure.  There,  when 
the  whole  public  mind  was  at  once  awed  and  softened  to 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE     285 

the  impression  of  every  human  affection,  there  appeared, 
day  after  day,  one  after  another,  men  of  the  most  powerful 
and  exalted  talents,  eclipsing  by  their  accusing  eloquence 
the  most  boasted  harangues  of  antiquity;  rousing  the  pride 
of  national  resentment  by  the  boldest  invectives  against 
broken  faith  and  violated  treaties,  and  shaking  the  bosom 
with  alternate  pity  and  horror  by  the  most  glowing  pic- 
tures of  insulted  nature  and  humanity;  ever  animated  and 
energetic,  from  the  love  of  fame,  which  is  the  inherent  pas- 
sion of  genius;  firm  and  indefatigable,  from  a  strong  pre- 
possession of  the  justice  of  their  cause. 

Gentlemen,  when  the  author  sat  down  to  write  the  book 
now  before  you,  all  this  terrible,  unceasing,  exhaustless 
artillery  of  warm  zeal,  matchless  vigor  of  understanding, 
consuming  and  devouring  eloquence,  united  with  the  high- 
est dignity,  was  daily,  and  without  prospect  of  conclusion, 
pouring  forth  upon  one  private  unprotected  man,  who  was 
bound  to  hear  it,  in  the  face  of  the  whole  people  of  Eng- 
land, with  reverential  submission  and  silence.  I  do  not 
complain  of  this,  as  I  did  of  the  publication  of  the  charges, 
because  it  is  what  the  law  allowed  and  sanctioned  in  the 
course  of  a  public  trial.  But,  when  it  is  remembered  that  we 
are  not  angels,  but  weak,  fallible  men,  and  that  even  the 
noble  judges  of  that  high  tribunal  are  clothed  beneath  their 
ermines  with  the  common  infirmities  of  man's  nature,  it 
will  bring  us  all  to  a  proper  temper  for  considering  the  book 
itself,  which  will  in  a  few  moments  be  laid  before  you.  But 
first,  let  me  once  more  remind  you,  that  it  was  under  all 
these  circumstances,  and  amid  the  blaze  of  passion  and 
prejudice,  which  the  scene  I  have  been  endeavoring  faintly 
to  describe  to  you  might  be  supposed  likely  to  produce,  that 
the  author,  whose  name  I  will  now  give  to  you,  sat  down 
to  compose  the  book  which  is  prosecuted  to-day  as  a  libel. 

The  history  of  it  is  very  short  and  natural. 

The  Rev.  Mr.  Logan,  minister  of  the  Gospel  at  Leith,  in 


286  THE  BRIEF 

Scotland,  a  clergyman  of  the  purest  morals,  and,  as  you 
will  see  by  and  by,  of  very  superior  talents,  well  acquainted 
with  the  human  character,  and  knowing  the  difficulty  of 
bringing  back  public  opinion  after  it  is  settled  on  any  sub- 
ject, took  a  warm,  unbought,  unsolicited  interest  in  the 
situation  of  Mr.  Hastings,  and  determined,  if  possible,  to 
arrest  and  suspend  the  public  judgment  concerning  him. 
He  felt  for  the  situation  of  a  fellow-citizen  exposed  to  a 
trial  which,  whether  right  or  wrong,  is  undoubtedly  a  severe 
one  —  a  trial  certainly  not  confined  to  a  few  criminal  acts 
like  those  we  are  accustomed  to,  but  comprehending  the 
transactions  of  a  whole  life,  and  the  complicated  policies 
of  numerous  and  distant  nations  —  a  trial  which  had  nei- 
ther visible  limits  to  its  duration,^  bounds  to  its  expense, 
nor  circumscribed  compass  for  the  grasp  of  memory  or 
understanding  —  a  trial  which  had,  therefore,  broke  loose 
from  the  common  form  of  decision,  and  had  become  the 
universal  topic  of  discussion  in  the  world,  superseding 
not  only  every  other  grave  pursuit,  but  every  fashionable 
dissipation. 

Gentlemen,  the  question  you  have,  therefore,  to  try  upon 
all  this  matter  is  extremely  simple.  It  is  neither  more  nor 
less  than  this :  At  a  time  when  the  charges  against  Mr.  Hast- 
ings were,  by  the  implied  consent  of  the  Commons,  in  every 
hand  and  on  every  table  —  when,  by  their  managers,  the 
lightning  of  eloquence  was  incessantly  consuming  him  and 
flashing  in  the  eyes  of  the  public  —  when  every  man  was 
with  perfect  impunity  saying,  and  writing,  and  publishing 
just  what  he  pleased  of  the  supposed  plunderer  and  devas- 
tator of  nations  —  would  it  have  been  criminal  in  Mr. 
Hastings  himself  to  have  reminded  the  public  that  he  was 

1  The  trial  began  13th  February,  1788,  and  was  protracted  until 
April  22,  1795  (occupying  one  hundred  and  forty-eight  days),  when  Mr. 
Hastings  was  acquitted  by  a  large  majority  on  every  separate  article 
charged  against  him.  The  cost  of  the  defense  amounted  to  £76,080.  — 
Goodrich. 


SPEECH   IN  BEHALF  OF  JOHN  STOCKDALE     287 

a  native  of  this  free  land,  entitled  to  the  common  protec- 
tion of  her  justice,  and  that  he  had  a  defense,  in  his  turn, 
to  offer  to  them,  the  outlines  of  which  he  implored  them, 
in  the  mean  time,  to  receive  as  an  antidote  to  the  unlimited 
and  unpunished  poison  in  circulation  against  him?  This  is, 
without  color  or  exaggeration,  the  true  question  you  are 
to  decide.  For  I  assert,  without  the  hazard  of  contradic- 
tion, that  if  Mr.  Hastings  himself  could  have  stood  justified 
or  excused  in  your  eyes  for  publishing  this  volume  in  his 
own  defense,  the  author,  if  he  wrote  it  bona  fide  to  defend 
him,  must  stand  equally  excused  and  justified;  and,  if  the 
author  be  justified,  the  publisher  cannot  be  criminal,  un- 
less you  have  evidence  that  it  was  published  by  him  with 
a  different  spirit  and  intention  from  those  in  which  it  was 
written.  The  question,  therefore,  is  correctly  what  I  just 
now  stated  it  to  be:  Could  Mr.  Hastings  have  been  con- 
demned to  infamy  for  writing  this  book? 

Gentlemen,  I  tremble  with  indignation,  to  be  driven  to 
put  such  a  question  in  England.  Shall  it  be  endured  that 
a  subject  of  this  country  (instead  of  being  arraigned  and 
tried  for  some  single  act  in  her  ordinary  courts,  where  the 
accusation,  as  soon,  at  least,  as  it  is  made  public,  is  followed 
within  a  few  hours  by  the  decision)  may  be  impeached  by 
the  Commons  for  the  transactions  of  twenty  years  —  that 
the  accusation  shall  spread  as  wide  as  the  region  of  letters 
—  that  the  accused  shall  stand,  day  after  day,  and  year 
after  year,  as  a  spectacle  before  the  public,  which  shall  be 
kept  in  a  perpetual  state  of  inflammation  against  him;  yet 
that  he  shall  not,  without  the  severest  penalties,  be  permit- 
ted to  submit  anything  to  the  judgment  of  mankind  in  his 
defense?  If  this  be  law  (which  it  is  for  you  to-day  to  de- 
cide), such  a  man  has  no  trial!  That  great  hall,  built  by 
our  fathers  for  English  justice,  is  no  longer  a  court,  but  an 
altar;  and  an  Englishman,  instead  of  being  judged  in  it  by 
God  and  his  country,  is  a  victim  and  a  sacrifice! 


288  THE  BRIEF 

You  will  carefully  remember  that  I  am  not  presuming  to 
question  either  the  right  or  duty  of  the  Commons  of  Great 
Britain  to  impeach;  neither  am  I  arraigning  the  propriety 
of  their  selecting,  as  they  have  done,  the  most  extraordi- 
nary persons  for  ability  which  the  age  has  produced,  to 
manage  their  impeachment.  Much  less  am  I  censuring  the 
managers  themselves,  charged  with  the  conduct  of  it  before 
the  Lords,  who  are  undoubtedly  bound,  by  their  duty  to 
the  House  and  to  the  public,  to  expatiate  upon  the  crimes 
of  the  persons  whom  they  had  accused.  None  of  these 
points  are  questioned  by  me,  nor  are  in  this  place  ques- 
tionable. I  only  desire  to  have  it  decided  whether,  if  the 
Commons,  when  national  expediency  happens  to  call  in 
their  judgment  for  an  impeachment,  shall,  instead  of  keep- 
ing it  on  their  own  records  and  carrying  it  with  due  solem- 
nity to  the  Peers  for  trial,  permit  it,  without  censure  and 
punishment,  to  be  sold  like  a  common  newspaper  in  the 
shop  of  my  client,  so  crowded  with  their  own  members  that 
no  plain  man,  without  privilege  of  Parliament,  can  hope 
even  for  a  sight  of  the  fire  in  the  winter's  day,  every  man 
buying  it,  reading  it,  and  commenting  upon  it  —  the  gentle- 
man himself  who  is  the  object  of  it,  or  his  friend  in  his  ab- 
sence, may  not,  without  stepping  beyond  the  bounds  of 
English  freedom,  put  a  copy  of  what  is  thus  published 
into  his  pocket,  and  send  back  to  the  very  same  shop  for 
publication  a  hona-jide,  rational,  able  answer  to  it,  in  order 
that  the  bane  and  antidote  may  circulate  together,  and  the 
public  be  kept  straight  till  the  day  of  decision.  If  you 
think,  gentlemen,  that  this  common  duty  of  self-preserva- 
tion to  the  accused  himself,  which  nature  writes  as  a  law 
upon  the  hearts  of  even  savages  and  brutes,  is  nevertheless 
too  high  a  privilege  to  be  enjoyed  by  an  impeached  and 
suffering  Englishman;  or  if  you  think  it  beyond  the  oflfices 
of  humanity  and  justice,  when  brought  home  to  the  hand 
of  a  brother  or  a  friend,  you  will  say  so  by  your  verdict  of 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    289 

guilty;  the  decision  will  then  be  yours;  and  the  consolation 
miney  that  I  have  labored  to  avert  it.  A  very  small  part  of 
the  misery  which  will  follow  from  it  is  likely  to  light  upon 
me;  the  rest  will  be  divided  among  yourselves  and  your 
children. 

Gentlemen,  I  observe  plainly  and  with  infinite  satisfac- 
tion, that  you  are  shocked  and  offended  at  my  even  sup- 
posing it  possible  you  should  pronounce  such  a  detestable 
judgment;  and  that  you  only  require  of  me  to  make  out  to 
your  satisfaction,  as  I  promised,  that  the  real  scope  and 
object  of  this  book  is  a  hona-fide  defense  of  Mr.  Hastings, 
and  not  a  cloak  and  cover  for  scandal  on  the  House  of 
Commons.  I  engage  to  do  this,  and  I  engage  for  nothing 
more.  I  shall  make  an  open,  manly  defense.  I  mean  to 
torture  no  expressions  from  their  natural  constructions,  to 
dispute  no  innuendoes  on  the  record,  should  any  of  them 
have  a  fair  application;  nor  to  conceal  from  your  notice  any 
unguarded,  intemperate  expressions,  which  may,  perhaps, 
be  found  to  checker  the  vigorous  and  animated  career  of 
the  work.  Such  a  conduct  might,  by  accident,  shelter  the 
defendant;  but  it  would  be  the  surrender  of  the  very  princi- 
ple on  which  alone  the  liberty  of  the  English  press  can 
stand;  and  I  shall  never  defend  any  man  from  a  temporary 
imprisonment  by  the  permanent  loss  of  my  own  liberty, 
and  the  ruin  of  my  country.  I  mean,  therefore,  to  submit 
to  you  that,  though  you  should  find  a  few  lines  in  page 
thirteen  or  twenty-one;  a  few  more  in  page  fifty-one,  and 
some  others  in  other  places;  containing  expressions  bearing 
on  the  House  of  Commons,  even  as  a  body,  which,  if  writ- 
ten as  independent  paragraphs  by  themselves,  would  be 
indefensible  libels,  yet,  that  you  have  a  right  to  pass  them 
over  in  judgment,  provided  the  substance  clearly  appears 
to  be  a  bona-fide  conclusion,  arising  from  the  honest  in- 
vestigation of  a  subject  which  it  was  lawful  to  investigate, 
and  the  questionable  expressions,  the  visible  effusion  of  a 


290  THE  BRIEF 

zealous  temper,  engaged  in  an  honorable  and  legal  pursuit. 
After  this  preparation,  I  am  not  afraid  to  lay  the  book  in 
its  genuine  state  before  you. 
The  pamphlet  begins  thus: 

The  House  of  Commons  has  now  given  its  final  decision  with 
regard  to  the  merits  and  demerits  of  Mr.  Hastings.  The  Grand 
Inquest  of  England  have  delivered  their  charges,  and  preferred 
their  impeachment;  their  allegations  are  referred  to  proof;  and, 
from  the  appeal  to  the  collective  wisdom  and  justice  of  the  nation 
in  the  supreme  tribunal  of  the  kingdom,  the  question  comes  to  be 
determined,  whether  Mr.  Hastings  be  guilty  or  not  guilty. 

Now  if,  immediately  after  what  I  have  just  read  to  you 
—  which  is  the  first  part  charged  by  the  information  —  the 
author  had  said,  *' Will  accusations,  built  on  such  a  baseless 
fabric,  prepossess  the  public  in  favor  of  the  impeachment? 
What  credit  can  we  give  to  multiplied  and  accumulated 
charges,  when  we  find  that  they  originate  from  misrepre- 
sentation and  falsehood?"  every  man  would  have  been 
justified  in  pronouncing  that  he  was  attacking  the  House  of 
Commons;  because  the  groundless  accusations  mentioned 
in  the  second  sentence  could  have  no  reference  but  to  the 
House  itself  mentioned  by  name  in  the  first  and  only  sen- 
tence which  preceded  it. 

But,  gentlemen,  to  your  astonishment  I  will  now  read 
what  intervenes  between  these  two  passages.  From  this  you 
will  see,  beyond  a  possibility  of  doubt,  that  the  author 
never  meant  to  calumniate  the  House  of  Commons,  but  to 
say  that  the  accusations  of  Mr.  Hastings  before  the  whole 
House  grew  out  of  a  Committee  of  Secrecy  established 
some  years  before,  and  were  afterward  brought  forward  by 
the  spleen  of  private  enemies  and  a  faction  in  the  Govern- 
ment. This  will  appear  not  only  from  the  grammatical 
construction  of  the  words,  but  from  what  is  better  than 
words,  from  the  meaning  which  a  person  writing  as  a  friend 
of  Mr.  Hastings  must  be  supposed  to  have  intended  to 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE     291 

convey.  Why  should  such  a  friend  attack  the  House  of 
Commons?  Will  any  man  gravely  tell  me  that  the  House 
of  Commons,  as  a  hody^  ever  wished  to  impeach  Mr.  Hast- 
ings.^ Do  we  not  all  know  that  they  constantly  hung  back 
from  it,  and  hardly  knew  where  they  were,  or  what  to  do 
when  they  found  themselves  entangled  with  it?  My  learned 
friend,  the  Attorney-General,  is  a  member  of  this  Assem- 
bly: perhaps  he  may  tell  you  by  and  by  what  he  thought 
of  it,  and  whether  he  ever  marked  any  disposition  in  the 
majority  of  the  Commons  hostile  to  Mr.  Hastings.  But 
why  should  I  distress  my  friend  by  the  question?  The  fact 
is  sufficiently  notorious;  and  what  I  am  going  to  read  from 
the  book  itself  —  which  is  left  out  in  the  information  — 
is  too  plain  for  controversy. 

Whatever  may  be  the  event  of  the  impeachment,  the  proper 
exercise  of  such  power  is  a  valuable  privilege  of  the  British  Con- 
stitution, a  formidable  guardian  of  the  public  liberty  and  the 
dignity  of  the  nation.  The  only  danger  is,  that,  from  the  influence 
of  faction,  and  the  awe  which  is  annexed  to  great  names,  they  may  be 
prompted  to  determine  before  they  inquire,  and  to  pronounce  judg- 
ment without  examination. 

Here  is  the  clue  to  the  whole  pamphlet.  The  author 
trusts  to,  and  respects,  the  House  of  Commons,  but  is 
afraid  their  mature  and  just  examination  may  be  disturbed 
by  faction.  Now,  does  he  mean  government  by  faction? 
Does  he  mean  the  majority  of  the  Commons  by  faction  ? 
Will  the  House,  which  is  the  prosecutor  here,  sanction  that 
application  of  the  phrase?  or  will  the  Attorney-General 
admit  the  majority  to  be  the  true  innuendo  of  faction  ?  I 
wish  he  would;  I  should  then  have  gained  something  at 
least  by  this  extraordinary  debate.  But  I  have  no  expec- 
tation of  the  sort;  such  a  concession  would  be  too  great  a 
sacrific^e  to  any  prosecution,  at  a  time  when  everything  is 
considered  as  faction  that  disturbs  the  repose  of  the  min- 
ister in  Parliament.   But,  indeed,  gentlemen,  some  things 


292  THE  BRIEF 

are  too  plain  for  argument.  The  author  certainly  means 
Tny  friends,  who,  whatever  qualifications  may  belong  to 
them,  must  be  contented  with  the  appellation  of  faction, 
while  they  oppose  the  minister  in  the  House  of  Commons; 
but  the  House,  having  given  this  meaning  to  the  phrase  of 
faction  for  its  own  purposes,  cannot  in  decency  change  the 
interpretation,  in  order  to  convict  my  client.  I  take  that 
to  be  beyond  the  privilege  of  Parliament. 

The  same  bearing  upon  individual  members  of  the  Com- 
mons, and  not  on  the  Commons  as  a  body,  is  obvious  through- 
out. Thus,  after  saying,  in  page  ninth,  that  the  East  India 
Company  had  thanked  Mr.  Hastings  for  his  meritorious 
services  —  which  is  unquestionably  true  —  he  adds,  "that 
mankind  would  abide  by  their  deliberate  decision,  rather 
than  by  the  intemperate  assertion  of  a  committee.^* 

This  he  writes  after  the  impeachment  was  found  by  the 
Commons  at  large.  But  he  takes  no  account  of  their  pro- 
ceedings; imputing  the  whole  to  the  original  committee  — 
that  is,  the  Committee  of  Secrecy  —  so  called,  I  suppose, 
from  their  being  the  authors  of  twenty  volumes  in  folio, 
which  will  remain  a  secret  to  all  posterity,  as  nobody  will 
ever  read  them.  The  same  construction  is  equally  plain 
from  what  immediately  follows : 

The  report  of  the  Committee  of  Secrecy  also  states  that  the 
happiness  of  the  native  inhabitants  of  India  has  been  deeply 
affected,  their  confidence  in  English  faith  and  lenity  shaken  and 
impaired,  and  the  character  of  this  nation  wantonly  and  wickedly 
degraded. 

Here,  again,  you  are  grossly  misled  by  the  omission  of 
nearly  twenty-one  pages.  For  the  author,  though  he  is 
here  speaking  of  this  committee  by  name,  which  brought 
forward  the  charges  to  the  notice  of  the  House,  and  which 
he  continues  to  do  onward  to  the  next  selected  paragraph, 
yet,  by  arbitrarily  sinking  the  whole  context,  is  taken  to 
be  speaking  to  the  House  as  a  body,  when,  in  the  passage 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    293 

next  charged  by  the  information,  he  reproaches  the  accusers 
of  Mr.  Hastings;  although,  so  far  is  he  from  considering 
them  as  the  House  of  Commons,  that  in  the  very  same  page 
he  speaks  of  the  articles  as  the  charges  not  even  of  the  com- 
mittee, but  of  Mr.  Burke  alone,  the  most  active  and  intelli- 
gent member  of  that  body,  having  been  circulated  in  India 
by  a  relation  of  that  gentleman : 

The  charges  of  Mr.  Burke  have  been  carried  to  Calcutta,  and 
carefully  circulated  in  India. 

Now,  if  we  were  considering  these  passages  of  the  work 
as  calumniating  a  body  of  gentlemen,  many  of  whom  I 
must  be  supposed  highly  to  respect,  or  as  reflecting  upon 
my  worthy  friend  whose  name  I  have  mentioned,  it  would 
give  rise  to  a  totally  different  inquiry,  which  it  is  neither 
my  duty  nor  yours  to  agitate.  But,  surely,  the  more  that 
consideration  obtrudes  itself  upon  us,  the  more  clearly  it 
demonstrates  that  the  author's  whole  direction  was  against 
the  individual  accusers  of  Mr.  Hastings,  and  not  against 
the  House  of  Commons,  which  merely  trusted  to  the  mat- 
ter they  had  collected. 

Although,  from  a  caution  which  my  situation  dictates, 
as  representing  another,  I  have  thought  it  my  duty  thus  to 
point  out  to  you  the  real  intention  of  the  author,  as  it  ap- 
pears by  the  fair  construction  of  the  work,  yet  I  protest,  that 
in  my  own  apprehension  it  is  very  immaterial  whether  he 
speaks  of  the  committee  or  of  the  House,  provided  you  shall 
think  the  whole  volume  a  bona-fide  defense  of  Mr.  Hastings. 
This  is  the  great  point  I  am,  by  all  my  observations,  en- 
deavoring to  establish,  and  which,  I  think,  no  man  who 
reads  the  following  short  passages  can  doubt.  Very  intelli- 
gent persons  have,  indeed,  considered  them,  if  founded  in 
facts,  to  render  every  other  amplification  unnecessary.  The 
first  of  them  is  as  follows : 

It  was  known  at  that  time  that  Mr.  Hastings  had  not  only 


294  THE  BRIEF 

descended  from  a  public  to  a  private  station,  but  that  he  was 
persecuted  with  accusations  and  impeachments.  But  none  of 
these  svffenng  millions  have  sent  their  complaints  to  this  country; 
not  a  sigh  nor  a  groan  has  been  wafted  from  India  to  Britain.  On 
the  contrary,  testimonies  the  most  honorable  to  the  character 
and  merit  of  Mr.  Hastings  have  been  transmitted  by  those  very 
princes  whom  he  has  been  supposed  to  have  loaded  with  the  deep- 
est injuries. 

Here,  gentlemen,  we  must  be  permitted  to  pause  together 
a  little;  for,  in  examining  whether  these  pages  were  written 
as  an  honest  answer  to  the  charges  of  the  Commons,  or  as 
a  prostituted  defense  of  a  notorious  criminal,  whom  the 
writer  believed  to  be  guilty,  truth  becomes  material  at 
every  step.  For,  if,  in  any  instance,  he  be  detected  of  a 
willful  misrepresentation,  he  is  no  longer  an  object  of  your 
attention. 

Will  the  Attorney-General  proceed,  then,  to  detect  the 
hypocrisy  of  our  author,  by  giving  us  some  details  of  the 
proofs  by  which  these  personal  enormities  have  been  estab- 
lished, and  which  the  writer  must  be  supposed  to  have  been 
acquainted  with?  I  ask  this  as  the  defender  of  Mr.  Stock- 
dale,  not  of  Mr.  Hastings,  with  whom  I  have  no  concern. 
I  am  sorry,  indeed,  to  be  so  often  obliged  to  repeat  this  pro- 
test; but  I  really  feel  myself  embarrassed  with  those  re- 
peated coincidences  of  defense  which  thicken  on  me  as  I 
advance,  and  which  were,  no  doubt,  overlooked  by  the 
Commons  when  they  directed  this  interlocutory  inquiry 
into  his  conduct.  I  ask,  then,  as  counsel  for  Mr.  Stockdale, 
whether,  when  a  great  state  criminal  is  brought  for  justice 
at  an  immense  expense  to  the  public,  accused  of  the  most 
oppressive  cruelties,  and  charged  with  the  robbery  of 
princes  and  the  destruction  of  nations,  is  it  not  open  to  any 
one  to  ask.  Who  are  his  accusers?  What  are  the  sources 
and  the  authorities  of  these  shocking  complaints?  Where 
are  the  Ambassadors  or  memorials  of  those  princes  whose 
revenues  he  has  plundered?   Where  are  the  witnesses  for 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    295 

those  unhappy  men  in  whose  persons  the  rights  of  human- 
ity have  been  violated?  How  deeply  buried  is  the  blood 
of  the  innocent,  that  it  does  not  rise  up  in  retributive 
judgment  to  confound  the  guilty!  These,  surely,  are  ques- 
tions which,  when  a  fellow-citizen  is  upon  a  long,  pain- 
ful, and  expensive  trial,  humanity  has  a  right  to  propose; 
which  the  plain  sense  of  the  most  unlettered  man  may  be 
expected  to  dictate,  and  which  all  history  must  provoke 
from  the  more  enlightened.  When  Cicero  impeached  Ver- 
RES  ^  before  the  great  tribunal  of  Rome,  of  similar  cruel- 
ties and  depredations  in  her  provinces,  the  Roman  people 
were  not  left  to  such  inquiries.  All  Sicily  surrounded  the 
Forum,  demanding  justice  upon  her  plunderer  and  spoiler, 
with  tears  and  imprecations.  It  was  not  by  the  eloquence 
of  the  orator,  but  by  the  cries  and  tears  of  the  miserable, 
that  Cicero  prevailed  in  that  illustrious  cause.  Verres  fled 
from  the  oaths  of  his  accusers  and  their  witnesses,  and  not 
from  the  voice  of  Tully.  To  preserve  the  fame  of  his  elo- 
quence, he  composed  his  five  celebrated  speeches,  but  they 
were  never  delivered  against  the  criminal,  because  he  had 
fled  from  the  city,  appalled  with  the  sight  of  the  persecuted 
and  the  oppressed.  It  may  be  said  that  the  cases  of  Sicily 
and  India  are  widely  different;  perhaps  they  may  be; 
whether  they  are  or  not,  is  foreign  to  my  purpose.  I  am 
not  bound  to  deny  the  possibility  of  answers  to  such 
questions;  I  am  only  vindicating  the  right  to  ask  them. 

Gentlemen,  the  author,  in  the  other  passage  which  I 
marked  out  to  your  attention,  goes  on  thus: 

Lord  Comwallis  and  Sir  John  Macpherson,  his  successors  in 
office,  have  given  the  same  voluntary  tribute  of  approbation  to  his 

*  Verres,  as  praetor  and  governor  of  Sicily,  was  guilty  of  such  extortion 
and  oppression,  that  the  Sicilian  people  brought  an  accusation  against 
him  in  the  Senate,  and  Cicero  conducted  the  impeachment.  Verres  was 
defended  by  Hortensius,  the  celebrated  Roman  orator;  but,  aware  of  the 
justice  of  the  accusation,  he  left  Rome  without  waiting  the  result. — 
Goodrich. 


296  THE  BRIEF 

measures  as  Governor-General  of  India.  A  letter  from  the  former, 
dated  the  10th  of  August,  1786,  gives  the  following  account  of 
our  dominions  in  Asia:  "The  native  inhabitants  of  this  kingdom 
are  the  happiest  and  best  protected  subjects  in  India;  our  native 
allies  and  tributaries  confide  in  our  protection;  the  country  pow- 
ers are  aspiring  to  the  friendship  of  the  English;  and  from  the 
King  of  Tidore,  toward  New  Guinea,  to  Timur  Shah,  on  the  banks 
of  the  Indus,  there  is  not  a  state  that  has  not  lately  given  us 
proofs  of  confidence  and  respect." 

Still  pursuing  the  same  test  of  sincerity,  let  us  examine 
this  defensive  allegation. 

Will  the  Attorney-General  say  that  he  does  not  believe 
such  a  letter  from  Lord  Cornwallis  ever  existed?  No :  for  he 
knows  that  it  is  as  authentic  as  any  document  from  India 
upon  the  table  of  the  House  of  Commons.  What,  then, 
is  the  letter?  "The  native  inhabitants  of  this  kingdom, 
says  Lord  Cornwallis  [writing  from  the  very  spot],  are  the 
happiest  and  best  protected  subjects  in  India,"  etc.,  etc., 
etc.  The  inhabitants  of  this  kingdom!  Of  what  kingdom? 
Of  the  very  kingdom  which  Mr.  Hastings  has  just  returned 
from  governing  for  thirteen  years,  and  for  the  misgovern- 
ment  and  desolation  of  which  he  stands  every  day  as  a 
criminal,  or,  rather,  as  a  spectacle,  before  us.  This  is  mat- 
ter for  serious  reflection,  and  fully  entitles  the  author  to 
put  the  question  which  immediately  follows : 

Does  this  authentic  account  of  the  administration  of  Mr. 
Hastings,  and  of  the  state  of  India,  correspond  with  the  gloomy 
picture  of  despotism  and  despair  drawn  by  the  Committee  of 
Secrecy  f 

Had  that  picture  been  even  drawn  by  the  House  of  Com- 
mons itself,  he  would  have  been  fully  justified  in  asking 
this  question;  but  you  observe  it  has  no  bearing  on  it;  the 
last  words  not  only  entirely  destroy  that  interpretation, 
but  also  the  meaning  of  the  very  next  passage,  which  is 
selected  by  the  information  as  criminal,  namely : 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    297 

What  credit  can  we  give  to  multiplied  and  accumulated  charges, 
when  we  find  that  they  originate  from  misrepresentation  and 
falsehood? 

This  passage,  which  is  charged  as  a  libel  on  the  Com- 
mons, when  thus  compared  with  its  immediate  antecedent, 
can  bear  but  one  construction.  It  is  impossible  to  contend 
that  it  charges  misrepresentation  on  the  House  that  found 
the  impeachment,  but  upon  the  Committee  of  Secrecy  just 
before  adverted  to,  who  were  supposed  to  have  selected  the 
matter,  and  brought  it  before  the  whole  House  for  judg- 
ment. 

I  do  not  mean,  as  I  have  often  told  you,  to  vindicate  any 
calumny  on  that  honorable  committee,  or  upon  any  indi- 
vidual of  it,  any  more  than  upon  the  Commons  at  large; 

BUT  THE  DEFENDANT  IS  NOT  CHARGED   BY  THIS   INFORMA- 
TION WITH   ANY   SUCH   OFFENSES. 

Let  me  here  pause  once  more  to  ask  you,  whether  the 
book  in  its  genuine  state,  as  far  as  we  have  advanced  in  it, 
makes  the  same  impression  on  your  minds  now  as  when 
it  was  first  read  to  you  in  detached  passages;  and  whether, 
if  I  were  to  tear  off  the  first  part  of  it  which  I  hold  in  my 
hand,  and  give  it  to  you  as  an  entire  work,  the  first  and  last 
passages,  which  have  been  selected  as  libels  on  the  Com- 
mons, would  now  appear  to  be  so,  when  blended  with  the 
interjacent  parts?  I  do  not  ask  your  answer;  I  shall  have 
it  in  your  verdict.  The  question  is  only  put  to  direct  your 
attention  in  pursuing  the  remainder  of  the  volume  to  this 
main  point  —  Is  it  an  honest,  serious  defense  ?  For 
this  purpose,  and  as  an  example  for  all  others,  I  will  read 
the  author's  entire  answer  to  the  first  article  of  charge 
concerning  Cheyte  Sing,  the  Zemindar  of  Benares,  and 
leave  it  to  your  impartial  judgments  to  determine  whether 
it  be  a  mere  cloak  and  cover  for  the  slander  imputed  by  the 
information  to  the  concluding  sentence  of  it,  which  is  the 
only  part  attacked;  or  whether,  on  the  contrary,  that  con- 


298  THE  BRIEF 

elusion  itself,  when  embodied  with  what  goes  before  it,  does 
not  stand  explained  and  justified? 

The  first  article  of  impeachment  [continues  our  author]  is  con- 
cerning Cheyte  Sing,  the  Zemindar  of  Benares.  Bulwart  Sing, 
the  father  of  this  Rajah,  was  merely  an  aumil,  or  farmer  and 
collector  of  the  revenues  for  Sujah  ul  Dowlah,  Nabob  of  Oude, 
and  Vizier  of  the  Mogul  Empire.  When,  on  the  decease  of  his 
father,  Cheyte  Sing  was  confirmed  in  the  office  of  collector  for  the 
Vizier,  he  paid  £200,000  as  a  gift,  or  nuzzeranah,  and  an  addi- 
tional rent  of  £30,000  per  annum. 

As  the  father  was  no  more  than  an  aumil  [agent],  the  son  suc- 
ceeded only  to  his  rights  and  pretensions.  But  by  a  sunnud 
[decree]  granted  to  him  by  the  Nabob  Sujah  Dowlah  in  September, 
1773,  through  the  influence  of  Mr.  Hastings,  he  acquired  a  legal 
title  to  property  in  the  land,  and  was  raised  from  the  office  of 
aumil  to  the  rank  of  Zemindar.  About  four  years  after  the  death 
of  Bulwart  Sing,  the  Governor-General  and  council  of  Bengal 
obtained  the  sovereignty  paramount  of  the  province  of  Benares. 
On  the  transfer  of  this  sovereignty  the  governor  and  council  pro- 
posed a  new  grant  to  Cheyte  Sing,  confirming  his  former  privi- 
leges, and  conferring  upon  him  the  addition  of  the  sovereign  rights 
of  the  Mint,  and  the  powers  of  criminal  justice  with  regard  to  life 
and  death.  He  was  then  recognized  by  the  Company  as  one  of 
their  Zemindars:  a  tributary  subject,  or  feudatory  vassal,  of  the 
British  Empire  in  Hindostan.  The  feudal  system,  which  was 
formerly  supposed  to  be  peculiar  to  our  Gothic  ancestors,  has 
always  prevailed  in  the  East.  In  every  description  of  that  form 
of  government,  notwithstanding  accidental  variations,  there  are 
two  associations  expressed  or  understood:  one  for  internal  security, 
the  other  for  external  defense.  The  King  or  Nabob  confers  pro- 
tection on  the  feudatory  baron  as  tributary  prince,  on  condition 
of  an  annual  revenue  in  the  time  of  peace,  and  of  military  service, 
partly  commutable  for  money,  in  the  time  of  war.  The  feudal 
incidents  in  the  Middle  Ages  in  Europe,  the  fine  paid  to  the  supe- 
rior on  marriage,  wardship,  relief,  etc.,  correspond  to  the  annual 
tribute  in  Asia.  MiUtary  service  in  war,  and  extraordinary  aids  in 
the  event  of  extraordinary  emergencies,  were  common  to  both. 

When  the  Governor-General  of  Bengal,  in  1778,  made  an  ex- 
traordinary demand  on  the  Zemindar  of  Benares  for  five  lacks  of 
rupees,  the  British  Empire,  in  that  part  of  the  world,  was  sur- 
rounded with  enemies  which  threatened  its  destruction.  In  1779, 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE     299 

a  general  confederacy  was  formed  among  the  great  powers  of 
Hindostan  for  the  expulsion  of  the  English  from  their  Asiatic 
dominions.  At  this  crisis  the  expectation  of  a  French  armament 
augmented  the  general  calamities  of  the  country.  Mr.  Hastings  is 
charged  by  the  committee  with  making  his  first  demand  under 
the  false  pretense  that  hostilities  had  commenced  with  France. 
Such  an  insidious  attempt  to  pervert  a  meritorious  action  into  a 
crime  is  new,  even  in  the  history  of  impeachments.  On  the  7th  of 
July,  1778,  Mr.  Hastings  received  private  intelligence  from  an 
English  merchant  at  Cairo,  that  war  had  been  declared  by  Great 
Britain  on  the  23d  of  March,  and  by  France  on  the  30th  of  April. 
Upon  this  intelligence,  considered  as  authentic,  it  was  determined 
to  attack  all  the  French  settlements  in  India.  The  information 
was  afterward  found  to  be  premature;  but  in  the  latter  end  of 
August  a  secret  dispatch  was  received  from  England,  authorizing 
and  appointing  Mr.  Hastings  to  take  the  measures  which  he  had 
already  adopted  in  the  preceding  month.  The  Directors  and  the 
Board  of  Control  have  expressed  their  approbation  of  this  trans- 
action by  liberally  rewarding  Mr.  Baldwyn,  the  merchant,  for 
sending  the  earliest  intelligence  he  could  procure  to  Bengal.  It 
was  two  days  after  Mr.  Hastings's  information  of  the  French  war 
that  he  formed  the  resolution  of  exacting  the  five  lacks  of  rupees 
from  Cheyte  Sing,  and  would  have  made  similar  exactions  from  all 
the  dependencies  of  the  Company  in  India,  had  they  been  in  the 
same  circumstances.  The  fact  is,  that  the  great  Zemindars  of 
Bengal  pay  as  much  to  Government  as  their  lands  can  afford. 
Cheyte  Sing's  collections  were  above  fifty  lacks,  and  his  rent  not 
twenty-four. 

The  right  of  calling  for  extraordinary  aids  and  military 
service  in  times  of  danger  being  universally  established  in 
India,  as  it  was  formerly  in  Europe  during  the  feudal 
times,  the  subsequent  conduct  of  Mr.  Hastings  is  explained 
and  vindicated.  The  Governor-General  and  Council  of 
Bengal  having  made  a  demand  upon  a  tributary  Zemindar 
for  three  successive  years,  and  that  demand  having  been 
resisted  by  their  vassal,  they  are  justified  in  his  punishment. 
The  necessities  of  the  Company,  in  consequence  of  the  crit- 
ical situation  of  their  affairs  in  1781,  calling  for  a  high  fine 
—  the  ability  of  the  Zemindar,  who  possessed  near  two 


300  THE  BRIEF 

crores  of  rupees  in  money  and  jewels,  to  pay  the  sum  re- 
quired —  his  backwardness  to  comply  with  the  demands  of 
his  superiors  —  his  disaffection  to  the  EngUsh  interest,  and 
desire  of  revolt,  which  even  then  began  to  appear,  and 
were  afterward  conspicuous,  fully  justify  Mr.  Hastings 
in  every  subsequent  step  of  his  conduct.  In  the  whole  of 
his  proceedings,  it  is  manifest  that  he  had  not  early  formed 
a  design  hostile  to  the  Zemindar,  but  was  regulated  by 
events  which  he  could  neither  foresee  nor  control.  When 
the  necessary  measures  which  he  had  taken  for  supporting 
the  authority  of  the  Company,  by  punishing  a  refractory 
vassal,  were  thwarted  and  defeated  by  the  barbarous  mas- 
sacre of  the  British  troops,  and  the  rebellion  of  Cheyte 
Sing,  the  appeal  was  made  to  arms,  an  unavoidable  revolu- 
tion took  place  in  Benares,  and  the  Zemindar  became  the 
author  of  his  own  destruction. 

Here  follows  the  concluding  passage,  which  is  arraigned 
by  the  information : 

The  decision  of  the  House  of  Commons  on  this  charge  against 
Mr.  Hastings  is  one  of  the  most  singular  to  be  met  with  in  the 
annals  of  Parliament.  The  minister,  who  was  followed  by  the 
majority,  vindicated  him  in  everything  that  he  had  done,  and 
found  him  blamable  only  for  what  he  intended  to  do;  justified 
every  step  of  his  conduct,  and  only  criminated  his  proposed  in- 
tention of  converting  the  crimes  of  the  Zemindar  to  the  benefit  of 
the -state,  by  a  fine  of  fifty  lacks  of  rupees.  An  impeachment  of 
error  in  judgment  with  regard  to  the  quantum  of  a  fine,  and  for 
an  intention  that  never  was  executed,  and  never  known  to  the 
offending  party,  characterizes  a  tribunal  of  inquisition  rather  than 
a  court  of  Parliament. 

Gentlemen,  I  am  ready  to  admit  that  this  sentiment 
might  have  been  expressed  in  language  more  reserved  and 
guarded;  but  you  will  look  to  the  sentiment  itself,  rather 
than  to  its  dress  —  to  the  mind  of  the  writer,  and  not  to  the 
bluntness  with  which  he  may  happen  to  express  it.  It  is 
obviously  the  language  of  a  warm  man,  engaged  in  the  hon- 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    301 

est  defense  of  his  friend,  and  who  is  brought  to  what  he 
thinks  a  just  conclusion  in  argument,  which,  perhaps,  be- 
comes offensive  in  proportion  to  its  truth.  Truth  is  un- 
doubtedly no  warrant  for  writing  what  is  reproachful  of  any- 
private  man.  If  a  member  of  society  lives  within  the  law, 
then,  if  he  offends,  it  is  against  God  alone,  and  man  has 
nothing  to  do  with  him;  and,  if  he  transgress  the  laws,  the 
libeler  should  arraign  him  before  them,  instead  of  presum- 
ing to  try  him  himself.  But  as  to  writings  on  general  sub- 
jects, which  are  not  charged  as  an  infringement  on  the  rights 
of  individuals,  but  as  of  a  seditious  tendency,  it  is  far  other- 
wise. When,  in  the  progress  either  of  legislation  or  of  high 
national  justice  in  Parliament,  they  who  are  amenable  to 
no  law  are  supposed  to  have  adopted,  through  mistake  or 
error,  a  principle  which,  if  drawn  into  precedent,  might  be 
dangerous  to  the  public,  I  shall  not  admit  it  to  be  a  libel  in 
the  course  of  a  legal  and  bona-fide  publication,  to  state  that 
such  a  principle  had  in  fact  been  adopted.  The  people  of 
England  are  not  to  be  kept  in  the  dark  touching  the  pro- 
ceedings of  their  own  representatives.  Let  us,  therefore, 
coolly  examine  this  supposed  offense,  and  see  what  it 
amounts  to. 

First,  was  not  the  conduct  of  the  right  honorable  gentle- 
man, whose  name  is  here  mentioned,  exactly  what  it  is 
represented  .f^  Will  the  Attorney-General,  who  was  present 
in  the  House  of  Commons,  say  that  it  was  not.^  Did  not 
the  minister  vindicate  Mr.  Hastings  in  what  he  had  done,^ 
and  was  not  his  consent  to  that  article  of  the  impeachment 
founded  on  the  intention  only  of  levying  a  fine  on  the  Ze- 
mindar for  the  service  of  the  state,  beyond  the  quantum 
which  he,  the  minister,  thought  reasonable?  What  else  is 
this  but  an  impeachment  of  error  in  judgment  in  the  quan- 
tum of  a  fine? 

^  Mr.  Pitt  expressed  his  opinion  that,  admitting  the  right  of  Mr.  Hast- 
ings to  tax  the  Zemindar,  his  general  conduct  in  the  business  had  been 
unnecessarily  severe.  —  Goodrich. 


802  THE  BRIEF 

So  much  for  the  first  part  of  the  sentence,  which,  regard- 
ing Mr.  Pitt  only,  is  foreign  to  our  purpose.  And  as  to  the 
last  part  of  it,  which  imputes  the  sentiments  of  the  minister 
to  the  majority  that  followed  him  with  their  votes  on  the 
question,  that  appears  to  me  to  be  giving  handsome  credit 
to  the  majority  for  having  voted  from  conviction,  and  not 
from  courtesy  to  the  minister.  To  have  supposed  other- 
wise, I  dare  not  say,  would  have  been  a  more  natural  libel, 
but  it  would  certainly  have  been  a  greater  one.  The  sum 
and  substance,  therefore,  of  the  paragraph  is  only  this 
—  that  an  impeachment  for  an  error  in  judgment  is  not 
consistent  with  the  theory  or  the  practice  of  the  English 
Government.  So  say  I.  I  say,  without  reserve,  speaking 
merely  in  the  abstract,  and  not  meaning  to  decide  upon  the 
merits  of  Mr.  Hastings's  cause,  that  an  impeachment  for 
an  error  in  judgment  is  contrary  to  the  whole  spirit  of 
English  criminal  justice,  which,  though  not  binding  on  the 
House  of  Commons,  ought  to  be  a  guide  to  its  proceedings. 
I  say  that  the  extraordinary  jurisdiction  of  impeachment 
ought  never  to  be  assumed  to  expose  error  or  to  scourge 
misfortune,  but  to  hold  up  a  terrible  example  to  corruption 
and  willful  abuse  of  authority  by  extra  legal  pains.  If 
public  men  are  always  punished  with  due  severity  when 
the  source  of  their  misconduct  appears  to  have  been  self- 
ishly corrupt  and  criminal,  the  public  can  never  suffer 
when  their  errors  are  treated  with  gentleness.  From  such 
protection  to  the  magistrate,  no  man  can  think  lightly  of 
the  charge  of  magistracy  itself,  when  he  sees,  by  the  lan- 
guage of  the  saving  judgment,  that  the  only  title  to  it  is 
an  honest  and  zealous  intention.  If  at  this  moment,  gentle- 
men, or  indeed  in  any  other  in  the  whole  course  of  our  his- 
tory, the  people  of  England  were  to  call  upon  every  man  in 
this  impeaching  House  of  Commons  who  had  given  his  voice 
on  public  questions,  or  acted  in  authority,  civil  or  military, 
to  answer  for  the  issues  of  our  councils  and  our  wars,  and  if 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    303 

honest  single  intentions  for  the  pubhc  service  were  refused 
as  answers  to  impeachments,  we  should  have  many  rela- 
tions to  mourn  for,  and  many  friends  to  deplore.  For  my 
own  part,  gentlemen,  I  feel,  I  hope,  for  my  country  as 
much  as  any  man  that  inhabits  it;  but  I  would  rather  see 
it  fall,  and  be  buried  in  its  ruins,  than  lend  my  voice  to 
wound  any  minister,  or  other  responsible  person,  however 
unfortunate,  who  had  fairly  followed  the  lights  of  his  under- 
standing and  the  dictates  of  his  conscience  for  their  preser- 
vation. 

Gentlemen,  this  is  no  theory  of  mine;  it  is  the  language  of 
English  law,  and  the  protection  which  it  affords  to  every 
man  in  office,  from  the  highest  to  the  lowest  trust  of  gov- 
ernment. In  no  one  instance  that  can  be  named,  foreign 
or  domestic,  did  the  Court  of  King's  Bench  ever  interpose 
its  extraordinary  jurisdiction,  by  information,  against  any 
magistrate  for  the  widest  departure  from  the  rule  of  his 
duty,  without  the  plainest  and  clearest  proof  of  corruption. 
To  every  such  application,  not  so  supported,  the  constant 
answer  has  been.  Go  to  a  grand  jury  with  your  complaint. 
God  forbid  that  a  magistrate  should  suffer  from  an  error  in 
judgment,  if  his  purpose  was  honestly  to  discharge  his 
trust.  We  cannot  stop  the  ordinary  course  of  justice;  but 
wherever  the  court  has  a  discretion,  such  a  magistrate  is 
entitled  to  its  protection.  I  appeal  to  the  noble  judge,  and 
to  every  man  who  hears  me,  for  the  truth  and  universality 
of  this  position.  And  it  would  be  a  strange  solecism,  in- 
deed, to  assert  that,  in  a  case  where  the  supreme  court  of 
criminal  justice  in  the  nation  would  refuse  to  interpose  an 
extraordinary  though  a  legal  jurisdiction,  on  the  principle 
that  the  ordinary  execution  of  the  laws  should  never  be 
exceeded,  but  for  the  punishment  of  malignant  guilt,  the 
Commons,  in  their  higher  capacity,  growing  out  of  the  same 
Constitution,  should  reject  that  principle,  and  stretch 
them  still  further  by  a  jurisdiction  still  more  eccentric. 


304  THE  BRIEF 

Many  impeachments  have  taken  place,  because  the  law 
could  not  adequately  punish  the  objects  of  them;  but  who 
ever  heard  of  one  being  set  on  foot  because  the  law,  upon 
principle,  would  not  punish  them?  Many  impeachments 
have  been  adopted  for  a  higher  example  than  a  prosecution 
in  the  ordinary  courts,  but  surely  never  for  a  different  ex- 
ample. The  matter,  therefore,  in  the  offensive  paragraph 
is  not  only  an  indisputable  truth,  but  a  truth  in  the  propa- 
gation of  which  we  are  all  deeply  concerned. 

Whether  Mr.  Hastings,  in  the  particular  instance,  acted 
from  corruption  or  from  zeal  for  his  employers,  is  what  I 
have  nothing  to  do  with;  it  is  to  be  decided  in  judgment; 
my  duty  stops  with  wishing  him,  as  I  do,  an  honorable 
deliverance.  Whether  the  minister  or  the  Commons  meant 
to  found  this  article  of  the  impeachment  on  mere  error, 
without  corruption,  is  likewise  foreign  to  the  purpose.  The 
author  could  only  judge  from  what  was  said  and  done  on 
the  occasion.  He  only  sought  to  guard  the  principle,  which 
is  a  common  interest,  and  the  rights  of  Mr.  Hastings  under 
it.  He  was,  therefore,  justified  in  publishing  that  an  im- 
peachment, founded  in  error  in  judgment,  was,  to  all  in- 
tents and  purposes,  illegal,  unconstitutional,  and  unjust. 

Gentlemen,  it  is  now  time  for  us  to  return  again  to  the 
work  under  examination.  The  author,  having  discussed  the 
whole  of  the  first  article  through  so  many  pages,  without 
even  the  imputation  of  an  incorrect  or  intemperate  expres- 
sion, except  in  the  concluding  passage  (the  meaning  of 
which  I  trust  I  have  explained),  goes  on  with  the  same  ear- 
nest disposition  to  the  discussion  of  the  second  charge, 
respecting  the  princesses  of  Oude,  which  occupies  eighteen 
pages,  not  one  syllable  of  which  the  Attorney-General  has 
read,  and  on  which  there  is  not  even  a  glance  at  the  House 
of  Commons.  The  whole  of  this  answer  is,  indeed,  so  far 
from  being  a  mere  cloak  for  the  introduction  of  slander,  that 
I  aver  it  to  be  one  of  the  most  masterly  pieces  of  writing 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    305 

I  ever  read  in  my  life.  From  thence  he  goes  on  to  the  charge 
of  contracts  and  salaries,  which  occupies  five  pages  more, 
in  which  there  is  not  a  glance  at  the  House  of  Commons, 
nor  a  word  read  by  the  Attorney-General.  He  afterward 
defends  Mr.  Hastings  against  the  charges  respecting  the 
opium  contracts.  Not  a  glance  at  the  House  of  Commons; 
not  a  word  by  the  Attorney-General.  And,  in  short,  in  this 
manner  he  goes  on  with  the  others,  to  the  end  of  the  book. 

Now,  is  it  possible  for  any  human  being  to  believe  that  a 
man,  having  no  other  intention  than  to  vilify  the  House  of 
Commons  (as  this  information  charges),  should  yet  keep 
his  mind  thus  fixed  and  settled  as  the  needle  to  the  pole, 
upon  the  serious  merits  of  Mr.  Hastings's  defense,  without 
ever  straying  into  matter  even  questionable,  except  in  the 
two  or  three  selected  parts  out  of  two  or  three  hundred 
pages?  This  is  a  forbearance  which  could  not  have  existed, 
if  calumny  and  detraction  had  been  the  malignant  objects 
which  led  him  to  the  inquiry  and  publication.  The  whole 
fallacy,  therefore,  arises  from  holding  up  to  view  a  few 
detached  passages,  and  carefully  concealing  the  general 
tenor  of  the  book. 

Having  now  finished  most,  if  not  all  of  these  critical  ob- 
servations, which  it  has  been  my  duty  to  make  upon  this 
unfair  mode  of  prosecution,  it  is  but  a  tribute  of  common 
justice  to  the  Attorney-General,  (and  which  my  personal 
regard  for  him  makes  it  more  pleasant  to  pay,)  that  none  of 
my  commentaries  reflect  in  the  most  distant  manner  upon 
him;  nor  upon  the  Solicitor  for  the  Crown,  who  sits  near 
me,  who  is  a  person  of  the  most  correct  honor;  far  from  it. 
The  Attorney-General  having  orders  to  prosecute,  in  con- 
sequence of  the  address  of  the  House  to  His  Majesty,  had 
no  choice  in  the  mode  —  no  means  at  all  of  keeping  the 
prosecutors  before  you  in  countenance,  but  by  the  course 
which  has  been  pursued.  But  so  far  has  he  been  from  enlist- 
ing into  the  cause  those  prejudices,  which  it  is  not  difficult 


306  THE  BRIEF 

to  slide  into  a  business  originating  from  such  exalted 
authority,  he  has  honorably  guarded  you  against  them; 
pressing,  indeed,  severely  upon  my  client  with  the  weight 
of  his  ability,  but  not  with  the  glare  and  trappings  of  his 
high  office. 

Gentlemen,  I  wish  that  my  strength  would  enable  me  to 
convince  you  of  the  author's  singleness  of  intention,  and 
of  the  merit  and  ability  of  his  work,  by  reading  the  whole 
that  remains  of  it.  But  my  voice  is  already  nearly  ex- 
hausted; I  am  sorry  my  client  should  be  a  sufferer  by  my 
infirmity.  One  passage,  however,  is  too  striking  and  im- 
portant to  be  passed  over;  the  rest  I  must  trust  to  your 
private  examination.  The  author  having  discussed  all  the 
charges,  article  by  article,  sums  them  all  up  with  this 
striking  appeal  to  his  readers: 

The  authentic  statement  of  facts  which  has  been  given,  and  the 
arguments  which  have  been  employed,  are,  I  think,  sufficient  to 
vindicate  the  character  and  conduct  of  Mr.  Hastings,  even  on  the 
maxims  of  European  policy.  When  he  was  appointed  Governor- 
General  of  Bengal,  he  was  invested  with  a  discretionary  power 
to  promote  the  interests  of  the  India  Company,  and  of  the  British 
Empire  in  that  quarter  of  the  globe.  The  general  instructions  sent 
to  him  from  his  constituents  were,  *'  That  in  all  your  deliberations 
and  resolutions,  you  make  the  safety  and  prosperity  of  Bengal  your 
principal  object,  and  fix  your  attention  on  the  security  of  the  posses- 
sions and  revenues  of  the  Company."  His  superior  genius  some- 
times acted  in  the  spirit,  rather  than  complied  with  the  letter  of 
the  law;  but  he  discharged  the  trust,  and  preserved  the  empire 
committed  to  his  care,  in  the  same  way,  and  with  greater  splendor 
and  success  than  any  of  his  predecessors  in  office;  his  departure 
from  India  was  marked  with  the  lamentations  of  the  natives  and 
the  gratitude  of  his  countrymen;  and,  on  his  return  to  England, 
he  received  the  cordial  congratulations  of  that  numerous  and 
respectable  society,  whose  interests  he  had  promoted,  and  whose 
dominions  he  had  protected  and  extended. 

Gentlemen  of  the  jury  —  if  this  be  a  willfully  false  ac- 
count of  the  instructions  given  to  Mr.  Hastings  for  his 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    307 

Government,  and  of  his  conduct  under  them,  the  author 
and  pubHsher  of  this  defense  deserves  the  severest  punish- 
ment, for  a  mercenary  imposition  on  the  pubUc.  But  if  it 
be  true  that  he  was  directed  to  make  the  safety  and  prosper- 
ity of  Bengal  the  first  object  of  his  attention^  and  that,  under 
his  administration,  it  has  been  safe  and  prosperous;  if  it  be 
true  that  the  security  and  preservation  of  our  possessions 
and  revenues  in  Asia  were  marked  out  to  him  as  the  great 
leading  principle  of  his  Government,  and  that  those  posses- 
sions and  revenues,  amid  unexampled  dangers,  have  been 
secured  and  preserved,  then  a  question  may  be  unaccount- 
ably mixed  with  your  consideration,  much  beyond  the  con- 
sequence of  the  present  prosecution,  involving,  perhaps,  the 
merit  of  the  impeachment  itseK  which  gave  it  birth  —  a 
question  which  the  Commons,  as  prosecutors  of  Mr.  Hast- 
ings, should,  in  common  prudence,  have  avoided;  unless, 
regretting  the  unwieldy  length  of  their  proceedings  against 
him,  they  wish  to  afford  him  the  opportunity  of  this  strange 
anomalous  defense.  For,  although  I  am  neither  his  counsel, 
nor  desire  to  have  anything  to  do  with  his  guilt  or  inno- 
cence; yet,  in  the  collateral  defense  of  my  client,  I  am 
driven  to  state  matter  which  may  be  considered  by  many 
as  hostile  to  the  impeachment.  For  if  our  dependencies 
have  been  secured,  and  their  interests  promoted,  I  am 
driven,  in  the  defense  of  my  client,  to  remark  that  it  is 
mad  and  preposterous  to  bring  to  the  standard  of  justice 
and  humanity  the  exercise  of  a  dominion  founded  upon 
violence  and  terror.  It  may  and  must  be  true  that  Mr. 
Hastings  has  repeatedly  offended  against  the  rights  and 
privileges  of  Asiatic  government,  if  he  was  the  faithful 
deputy  of  a  power  which  could  not  maintain  itself  for  an 
hour  without  trampling  upon  both.  He  may  and  must 
have  offended  against  the  laws  of  God  and  nature,  if  he  was 
the  faithful  viceroy  of  an  empire  wrested  in  blood  from  the 
people  to  whom  God  and  nature  had  given  it.  He  may  and 


308  THE  BRIEF 

must  have  preserved  that  unjust  dominion  over  timorous 
and  abject  nations  by  a  terrifying,  overbearing,  insulting 
superiority,  if  he  was  the  faithful  administrator  of  your 
Government,  which,  having  no  root  in  consent  or  affection 
—  no  foundation  in  similarity  of  interests  —  no  support 
from  any  one  principle  which  cements  men  together  in 
society,  could  only  be  upheld  by  alternate  stratagem  and 
force.  The  unhappy  people  of  India,  feeble  and  effeminate 
as  they  are  from  the  softness  of  their  climate,  and  subdued 
and  broken  as  they  have  been  by  the  knavery  and  strength 
of  civilization,  still  occasionally  start  up  in  all  the  vigor 
and  intelligence  of  insulted  nature.  To  be  governed  at  all, 
they  must  be  governed  with  a  rod  of  iron;  and  our  empire 
in  the  East  would,  long  since,  have  been  lost  to  Great 
Britain,  if  civil  skill  and  military  prowess  had  not  united 
their  efforts  to  support  an  authority  —  which  Heaven 
never  gave  —  by  means  which  it  never  can  sanction.^ 

Gentlemen,  I  think  I  can  observe  that  you  are  touched 
with  this  way  of  considering  the  subject,  and  I  can  account 
for  it.  I  have  not  been  considering  it  through  the  cold 
medium  of  books,  but  have  been  speaking  of  man  and  his 
nature,  and  of  human  dominion,  from  what  I  have  seen  of 
them  myself  among  reluctant  nations  submitting  to  our  au- 
thority. I  know  what  they  feel,  and  how  such  feelings  can 

1  Mr.  Hastings  was  unquestionably  guilty  of  nearly  all  the  acts  charged 
upon  him  by  Mr.  Burke.  Still  it  was  felt  by  the  court,  and  at  last  by  the 
public  at  large,  that  great  allowance  ought  to  be  made  for  him  when  it 
was  remembered  that  he  completely  restored  the  finances  of  the  country, 
which  he  found  in  the  utmost  disorder;  that  he  established  the  British 
Empire  in  India  on  a  firm  basis,  at  a  time  when,  under  a  less  energetic 
government  than  his  own,  it  would  inevitably  have  fallen  altogether; 
and,  in  addition  to  this,  he  was  constantly  pressed  by  the  Directors  of 
the  East  India  Company  for  remittances  of  money,  which  could  only  be 
extorted  by  oppression.  Although  his  government  was  arbitrary,  yet  it 
was  popular  among  the  natives,  being  milder  and  more  just  than  that  of 
their  own  princes;  while  he  himself  was  respected  for  the  unusual  regard 
which  he  paid  to  native  prejudices  and  customs,  and  his  patronage  of 
literature  and  the  fine  arts.  —  Goodrich. 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    309 

alone  be  repressed.  I  have  heard  them  in  my  youth  from 
a  naked  savage,  in  the  indignant  character  of  a  prince  sur- 
rounded by  his  subjects,  addressing  the  governor  of  a  Brit- 
ish colony,  holding  a  bundle  of  sticks  in  his  hand,  as  the 
notes  of  his  unlettered  eloquence.  "Who  is  it,"  said  the 
jealous  ruler  over  the  desert,  encroached  upon  by  the  rest- 
less foot  of  English  adventure  —  "who  is  it  that  causes  this 
river  to  rise  in  the  high  mountains,  and  to  empty  itself  into 
the  ocean?  Who  is  it  that  causes  to  blow  the  loud  winds  of 
winter,  and  that  calms  them  again  in  summer?  Who  is  it 
that  rears  up  the  shade  of  those  lofty  forests,  and  blasts 
them  with  the  quick  lightning  at  his  pleasure?  The  same 
Being  who  gave  to  you  a  country  on  the  other  side  of  the 
waters,  and  gave  ours  to  us;  and  by  this  title  we  will  defend 
it,"  said  the  warrior,  throwing  down  his  tomahawk  upon 
the  ground,  and  raising  the  war-sound  of  his  nation.  These 
are  the  feelings  of  subjugated  man  all  round  the  globe;  and, 
depend  upon  it,  nothing  but  fear  will  control  where  it  is 
vain  to  look  for  affection. 

These  reflections  are  the  only  antidotes  to  those  anath- 
emas of  superhuman  eloquence  which  have  lately  shaken 
these  walls  that  surround  us,  but  which  it  unaccountably 
falls  to  my  province,  whether  I  will  or  no,  a  little  to  stem  the 
torrent  of,  by  reminding  you  that  you  have  a  mighty  sway 
in  Asia,  which  cannot  be  maintained  by  the  finer  sympa- 
thies of  life,  or  the  practice  of  its  charities  and  affections. 
What  will  they  do  for  you  when  surrounded  by  two  hundred 
thousand  men  with  artillery,  cavalry,  and  elephants,  call- 
ing upon  you  for  their  dominions  which  you  have  robbed 
them  of?  Justice  may,  no  doubt,  in  such  a  case  forbid  the 
levying  of  a  fine  to  pay  a  revolting  soldiery;  a  treaty  may 
stand  in  the  way  of  increasing  a  tribute  to  keep  up  the  very 
existence  of  the  Government;  and  delicacy  for  women  may 
forbid  all  entrance  into  a  Zenana  for  money,  whatever 
may  be  the  necessity  for  taking  it.   All  these  things  must 


310  THE  BRIEF 

ever  be  occurring.  But,  under  the  pressure  of  such  con- 
stant diflficulties,  so  dangerous  to  national  honor,  it  might 
be  better,  perhaps,  to  think  of  effectually  securing  it  alto- 
gether, by  recalling  our  troops  and  our  merchants,  and 
abandoning  our  Oriental  empire.  Until  this  be  done,  nei- 
ther religion  nor  philosophy  can  be  pressed  very  far  into 
the  aid  of  reformation  and  punishment.  If  England,  from 
a  lust  of  ambition  and  dominion,  will  insist  on  maintaining 
despotic  rule  over  distant  and  hostile  nations,  beyond  all 
comparison  more  numerous  and  extended  than  herself, 
and  gives  commission  to  her  viceroys  to  govern  them  with 
no  other  instructions  than  to  preserve  them,  and  to  secure 
permanently  their  revenues,  with  what  color  of  consistency 
or  reason  can  she  place  herself  in  the  moral  chair,  and  affect 
to  be  shocked  at  the  execution  of  her  own  orders;  adverting 
to  the  exact  measure  of  wickedness  and  injustice  necessary 
to  their  execution,  and  complaining  only  of  the  excess  as 
the  immorality,  considering  her  authority  as  a  dispensation 
for  breaking  the  commands  of  God,  and  the  breach  of  them 
as  only  punishable  when  contrary  to  the  ordinances  of  man? 

Such  a  proceeding,  gentlemen,  begets  serious  reflection. 
It  would  be  better,  perhaps,  for  the  masters  and  the  serv- 
ants of  all  such  governments  to  join  in  supplication,  that 
the  great  Author  of  violated  humanity  may  not  confound 
them  together  in  one  common  judgment. 

Gentlemen,  I  find,  as  I  said  before,  I  have  not  sufficient 
strength  to  go  on  with  the  remaining  parts  of  the  book.  I 
hope,  however,  that  notwithstanding  my  omissions,  you 
are  now  completely  satisfied  that,  whatever  errors  or  mis- 
conceptions may  have  misled  the  writer  of  these  pages,  the 
justification  of  a  person  whom  he  believed  to  be  innocent, 
and  whose  accusers  had  themselves  appealed  to  the  public, 
was  the  single  object  of  his  contemplation.  If  I  have  suc- 
ceeded in  that  object,  every  purpose  which  I  had  in  ad- 
dressing you  has  been  answered. 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    311 

It  only  now  remains  to  remind  you  that  another  consid- 
eration has  been  strongly  pressed  upon  you,  and,  no  doubt, 
will  be  insisted  on  in  reply.  You  will  be  told  that  the  mat- 
ters which  I  have  been  justifying  as  legal,  and  even  meri- 
torious, have  therefore  not  been  made  the  subject  of 
complaint;  and  that,  whatever  intrinsic  merit  parts  of  the 
book  may  be  supposed  or  even  admitted  to  possess,  such 
merit  can  afford  no  justification  to  the  selected  passages, 
some  of  which,  even  with  the  context,  carry  the  meaning 
charged  by  the  information,  and  which  are  indecent  ani- 
madversions on  authority.  To  this  I  would  answer  (still 
protesting  as  I  do  against  the  application  of  any  one  of  the 
innuendoes)  that,  if  you  are  firmly  persuaded  of  the  single- 
ness and  purity  of  the  author's  intentions,  you  are  not 
bound  to  subject  him  to  infamy,  because,  in  the  zealous 
career  of  a  just  and  animated  composition,  he  happens  to 
have  tripped  with  his  pen  into  an  intemperate  expression  in 
one  or  two  instances  of  a  long  work.  If  this  severe  duty 
were  binding  on  your  consciences,  the  liberty  of  the  press 
would  be  an  empty  sound,  and  no  man  could  venture  to 
write  on  any  subject,  however  pure  his  purpose,  without 
an  attorney  at  one  elbow  and  a  counsel  at  the  other. 

From  minds  thus  subdued  by  the  terrors  of  punishment, 
there  could  issue  no  works  of  genius  to  expand  the  empire 
of  human  reason,  nor  any  masterly  compositions  on  the 
general  nature  of  government,  by  the  help  of  which  the 
great  commonwealths  of  mankind  have  founded  their  es- 
tablishments; much  less  any  of  those  useful  applications  of 
them  to  critical  conjunctures,  by  which,  from  time  to  time, 
our  own  Constitution,  by  the  exertion  of  patriot  citizens, 
has  been  brought  back  to  its  standard.  Under  such  terrors, 
all  the  great  lights  of  science  and  civilization  must  be 
extinguished;  for  men  cannot  communicate  their  free 
thoughts  to  one  another  with  a  lash  held  over  their  heads. 
It  is  the  nature  of  everything  that  is  great  and  useful,  both 


312  THE  BRIEF 

in  the  animate  and  inanimate  world,  to  be  wild  and  irregu- 
lar, and  we  must  be  contented  to  take  them  with  the  alloys 
which  belong  to  them,  or  live  without  them.  Genius 
breaks  from  the  fetters  of  criticism,  but  its  wanderings  are 
sanctioned  by  its  majesty  and  wisdom  when  it  advances  in 
its  path :  subject  it  to  the  critic,  and  you  tame  it  into  dull- 
ness. Mighty  rivers  break  down  their  banks  in  the  winter, 
sweeping  away  to  death  the  flocks  which  are  fattened  on  the 
soil  that  they  fertilize  in  the  summer:  the  few  may  be  saved 
by  embankments  from  drowning,  but  the  flock  must  perish 
for  hunger.  Tempests  occasionally  shake  our  dwellings  and 
dissipate  our  commerce;  but  they  scourge  before  them  the 
lazy  elements,  which  without  them  would  stagnate  into 
pestilence.^  In  like  manner.  Liberty  herself,  the  last  and 
best  gift  of  God  to  his  creatures,  must  be  taken  just  as  she 
is:  you  might  pare  her  down  into  bashful  regularity,  and 
shape  her  into  a  perfect  model  of  severe,  scrupulous  law, 
but  she  would  then  be  Liberty  no  longer;  and  you  must 
be  content  to  die  under  the  lash  of  this  inexorable  justice 
which  you  had  exchanged  for  the  banners  of  Freedom. 

If  it  be  asked  where  the  line  to  this  indulgence  and  im- 
punity is  to  be  drawn,  the  answer  is  easy.  The  liberty  of 
the  press,  on  general  subjects,  comprehends  and  implies  as 
much  strict  observance  of  positive  law  as  is  consistent  with 
perfect  purity  of  intention,  and  equal  and  useful  society. 
What  that  latitude  is,  cannot  be  promulgated  in  the  ab- 

1  This  is  one  of  the  finest  amplifications  in  English  oratory,  beautiful 
in  itself,  justified  by  the  importance  of  the  subject  which  it  enforces,  and 
admirably  suited  to  produce  the  designed  impression.  The  seminal  idea 
was  probably  suggested  by  a  remark  of  Burke,  whose  writings  Mr. 
Erskine  incessantly  studied:  "  It  is  the  nature  of  all  greatness  not  to  be  exact." 
We  see  in  this  case,  how  a  man  of  genius  may  borrow  from  another,  with- 
out detracting  in  the  least  from  the  freshness  and  originality  with  which 
his  ideas  are  expressed  and  applied.  At  the  present  day,  there  can  be  very 
little  of  that  originality  which  presents  an  idea /or  the  first  time.  All  that 
can  be  expected  is,  that  we  make  it  our  own,  and  apply  it  to  new  purposes. 
—  Goodrich. 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    313 

stract,  but  must  be  judged  of  in  the  particular  instance, 
and  consequently,  upon  this  occasion,  must  be  judged  of 
by  you,  without  forming  any  possible  precedent  for  any 
other  case;  and  where  can  the  judgment  be  possibly  so  safe 
as  with  the  members  of  that  society  which  alone  can  suffer, 
if  the  writing  is  calculated  to  do  mischief  to  the  public? 
You  must,  therefore,  try  the  book  by  that  criterion,  and 
say  whether  the  publication  was  premature  and  offensive, 
or,  in  other  words,  whether  the  publisher  is  bound  to  have 
suppressed  it  until  the  public  ear  was  anticipated  and 
abused,  and  every  avenue  to  the  human  heart  or  under- 
standing secured  and  blocked  up.  I  see  around  me  those 
by  whom,  by  and  by,  Mr.  Hastings  will  be  most  ably  and 
eloquently  defended;  ^  but  I  am  sorry  to  remind  my  friends 
that,  but  for  the  right  of  suspending  the  public  judg- 
ment concerning  him  till  their  season  of  exertion  comes 
round,  the  tongues  of  angels  would  be  insufficient  for  the 
task. 

Gentlemen,  I  hope  I  have  now  performed  my  duty  to  my 
client:  I  sincerely  hope  that  I  have;  for,  cert-ainly,  if  ever 
there  was  a  man  pulled  the  other  way  by  his  interests  and 
affections  —  if  ever  there  was  a  man  who  should  have 
trembled  at  the  situation  in  which  I  have  been  placed  on 
this  occasion,  it  is  myself,  who  not  only  love,  honor,  and 
respect,  but  whose  future  hopes  and  preferments  are 
linked,  from  free  choice,  with  those  who,  from  the  mistakes 
of  the  author,  are  treated  with  great  severity  and  injus- 
tice. These  are  strong  retardments;  but  I  have  been  urged 
on  to  activity  by  considerations  which  can  never  be  incon- 
sistent with  honorable  attachments,  either  in  the  political 
or  social  world  —  the  love  of  justice  and  of  liberty,  and  a 
zeal  for  the  Constitution  of  my  country,  which  is  the  inher- 
itance of  our  posterity,  of  the  public,  and  of  the  world. 

1  Mr.  Law  (afterward  Lord  EUenborough),  Mr.  Plumer,  and  Mr. 
Dallas.  —  Goodrich. 


314  THE  BRIEF 

These  are  the  motives  which  have  animated  me  in  defense 
of  this  person,  who  is  an  entire  stranger  to  me  —  whose 
shop  I  never  go  to  —  and  the  author  of  whose  pubhcation, 
as  well  as  Mr.  Hastings,  who  is  the  object  of  it,  I  never 
spoke  to  in  my  life. 

One  word  more,  gentlemen,  and  I  have  done.  Every 
human  tribunal  ought  to  take  care  to  administer  justice, 
as  we  look  hereafter  to  have  justice  administered  to  our- 
selves. Upon  the  principle  on  which  the  Attorney-General 
prays  sentence  upon  my  client  —  God  have  mercy  upon 
us!  Instead  of  standing  before  Him  in  judgment  with  the 
hopes  and  consolations  of  Christians,  we  must  call  upon  the 
mountains  to  cover  us;  for  which  of  us  can  present,  for 
omniscient  examination,  a  pure,  unspotted,  and  faultless 
course?  But  I  humbly  expect  that  the  benevolent  Author 
of  our  being  will  judge  us  as  I  have  been  pointing  out  for 
your  example.  Holding  up  the  great  volume  of  our  lives 
in  his  hands,  and  regarding  the  general  scope  of  them;  if 
He  discovers  benevolence,  charity,  and  good-will  to  man 
beating  in  the  heart,  where  He  alone  can  look;  if  He  finds 
that  our  conduct,  though  often  forced  out  of  the  path  by 
our  infirmities,  has  been  in  general  well  directed;  his  all- 
searching  eye  will  assuredly  never  pursue  us  into  those  little 
corners  of  our  lives,  much  less  will  his  justice  select  them 
for  punishment,  without  the  general  context  of  our  exist- 
ence, by  which  faults  may  be  sometimes  found  to  have 
grown  out  of  virtues,  and  very  many  of  our  heaviest  of- 
fenses to  have  been  grafted  by  human  imperfection  upon 
the  best  and  kindest  of  our  affections.  No,  gentlemen,  be- 
lieve me,  this  is  not  the  course  of  divine  justice,  or  there  is 
no  truth  in  the  Gospels  of  Heaven.  If  the  general  tenor  of 
a  man's  conduct  be  such  as  I  have  represented  it,  he  may 
walk  through  the  shadow  of  death,  with  all  his  faults  about 
him,  with  as  much  cheerfulness  as  in  the  common  paths  of 
life;  because  he  knows  that,  instead  of  a  stern  accuser  to 


SPEECH  IN  BEHALF  OF  JOHN  STOCKDALE    315 

expose  before  the  Author  of  his  nature  those  frail  pas- 
sages which,  Uke  the  scored  matter  in  the  book  before  you, 
checker  the  volume  of  the  brightest  and  best-spent  life,  his 
mercy  will  obscure  them  from  the  eye  of  his  purity,  and 
our  repentance  blot  them  out  forever. 

All  this  would,  I  admit,  be  perfectly  foreign  and  irrele- 
vant, if  you  were  sitting  here  in  a  case  of  property  between 
man  and  man,  where  a  strict  rule  of  law  must  operate,  or 
there  would  be  an  end  of  civil  life  and  society.  It  would 
be  equally  foreign,  and  still  more  irrelevant,  if  applied  to 
those  shameful  attacks  upon  private  reputation  which  are 
the  bane  and  disgrace  of  the  press;  by  which  whole  families 
have  been  rendered  unhappy  during  life,  by  aspersions, 
cruel,  scandalous,  and  unjust.  Let  such  libelers  remember 
that  no  one  of  my  principles  of  defense  can,  at  any  time  or 
upon  any  occasion,  ever  apply  to  shield  them  from  punish- 
ment; because  such  conduct  is  not  only  an  infringement  of 
the  rights  of  men,  as  they  are  defined  by  strict  law,  but  is 
absolutely  incompatible  with  honor,  honesty,  or  mistaken 
good  intention.  On  such  men  let  the  Attorney-General 
bring  forth  all  the  artillery  of  his  office,  and  the  thanks  and 
blessings  of  the  whole  public  will  follow  him.  But  this  is 
a  totally  different  case.  Whatever  private  calumny  may 
mark  this  work,  it  has  not  been  made  the  subject  of  com- 
plaint, and  we  have  therefore  nothing  to  do  with  that,  nor 
any  right  to  consider  it.  We  are  trying  whether  the  public 
could  have  been  considered  as  offended  and  endangered  if 
Mr.  Hastings  himself,  in  whose  place  the  author  and  pub- 
lisher have  a  right  to  put  themselves,  had,  under  all  the 
circumstances  which  have  been  considered,  composed  and 
published  the  volume  under  examination.  That  question 
cannot,  in  common  sense,  be  anything  resembling  a  ques- 
tion of  LAW,  but  is  a  pure  question  of  fact,  to  be  decided 
on  the  principles  which  I  have  humbly  recommended.  I, 
therefore,  ask  of  the  court  that  the  book  itself  may  now  be 


316  THE  BRIEF 

delivered  to  you.  Read  it  with  attention,  and,  as  you  shall 
find  it,  pronounce  your  verdict. 

This  trial  took  place  before  the  passing  of  Mr.  Fox's  Libel  Bill; 
and  Lord  Kenyon  charged  the  jury  that  they  were  not  to  consider 
whether  the  pamphlet  was  libelous,  but  simply  whether  it  had 
been  published  by  the  defendant.  Under  these  circumstances, 
they  spent  two  hours  in  deliberation,  but  finally  broke  through 
the  instructions  of  the  court,  and  found  the  defendant  not 
GUILTY,  thus  anticipating  the  rights  soon  after  secured  to  juries 
by  an  act  of  Parliament. 


THE  UTILITY  OF  PRAYER  317 


7.  THE   UTILITY   OF   PRAYER 

A  Discourse  by  the  Reverend  Charles  Reynolds  BrovMy  D.D.y 
Dean  of  the  Yale  Divinity  School  ^ 

This  discourse  is  presented  as  an  admirable  example  of  orderly 
and  well-analyzed  homiletic  writing. 

The  moment  we  believe  in  God  we  are  face  to  face  with 
a  strong  presumption  in  favor  of  the  utility  of  prayer.  If 
He  is  the  Almighty,  He  can  hear.  If  He  is  a  moral  being. 
He  will  make  reply.  This  argument  was  suggested  by  the 
psalmist  of  old,  *'He  that  planted  the  ear,  shall  he  not 
hear?  He  that  formed  the  eye,  shall  he  not  see?  "  The  man 
who  believes  that  God  is  and  that  He  is  a  God  of  character, 
by  that  faith  affirms  his  further  confidence  that  "He  is  a 
rewarder  of  them  that  diligently  seek  Him." 

Prayer,  reduced  to  its  simplest  terms,  is  the  natural,  ajffec- 
tionate  intercourse  between  a  father  and  his  children.  The 
Gospels  assert  that 

these  two  mysterious  beings,  man  and  God,  have  such  a  kinship 
between  them  that  their  relationship  to  each  other  can  in  no  other 
way  be  so  well  named  as  by  the  terms  "father"  and  "child." 
This  conception  makes  room  for  that  infinite  distance  between 
God  and  man  which  so  profoundly  impresses  all  whose  minds 
dwell  upon  the  subject.  Between  the  man  of  power,  knowledge 
and  wise  range  of  interest,  and  the  infant  whose  face  is  breaking 
into  its  first  intelligent  smile,  the  distance  is  well-nigh  immeasur- 
able, though  it  in  no  way  destroys  the  genuineness  of  the  kinship 
between  them.  Toward  the  Infinite  Father  our  path  is  to  be  trod- 
den in  the  same  way  the  child  treads  the  path  toward  equality 
with  the  human  parent.  2 

The  method  of  prayer  is  not  found  in  the  action  of  crim- 
inals entreating  a  judge  for  mercy,  or  of  courtiers  beseech- 
ing their  king  for  favors,  or  of  adepts  seeking  to  manipulate 

1  From  The  Main  Points ;  by  the  kind  permission  of  The  Pilgrim  Press. 

2  John  P.  Coyle,  The  Imperial  Christ,  p.  74. 


818  THE  BRIEF 

certain  mysterious  forces  in  the  world  for  personal  ends.  It 
is  found  in  the  form  and  the  spirit  of  family  life.  "When 
ye  pray,  say,  '  Our  Father.'  "  Prayer  is  the  act  of  a  child 
entering  into  companionship  with  his  Father.  Prayer  is 
thus  natural  and  rational.  The  man  who  never  speaks  to 
his  Father  is  morbid !  If  you,  with  all  your  imperfections, 
love  to  have  your  children  come  to  you;  if  they  are  bene- 
fited by  coming;  if  you  give  them  bread  and  fish,  instruc- 
tion and  help,  affection  and  companionship,  when  they 
come,  how  much  more  will  your  heavenly  Father  give  good 
things  to  them  that  ask  Him! 

The  definite  promises  of  Scripture  encourage  the  habit 
of  prayer.  The  Bible  speaks  of  the  moral  needs  and  priv- 
ileges of  men  with  accuracy  and  authority.  Its  words  about 
prayer  are  clear  and  confident.  It  never  seems  to  be  feeling 
its  way.  It  walks  with  firm  tread,  as  in  the  light  of  ascer- 
tained facts.  "Men  ought  always  to  pray."  "Ask,  and  ye 
shall  receive."  "Seek,  and  ye  shall  find."  "Ejiock,"  — 
if  you  desire  to  advance  where  the  way  seems  closed,  — 
"and  it  shall  be  opened  unto  you."  The  utility  of  prayer 
is  steadily  assumed. 

Two  familiar  passages  illustrate  what  perseverance  will 
accomplish  in  the  face  of  unfavorable  conditions.  A  selfish 
man  was  in  bed  at  midnight,  angrily  unwilhng  to  be  dis- 
turbed, but  because  his  neighbor  persisted  in  knocking,  the 
crabbed  fellow  arose  and  gave  him  bread  to  set  before  those 
guests  who  had  overtaken  him  with  an  empty  larder.  An 
unjust  judge,  who  neither  feared  God  nor  man,  was  so 
moved  by  the  persistence  of  a  poor  widow  —  a  type  of  help- 
lessness in  a  corrupt  court  of  law  —  that  simply  through 
dread  of  being  wearied  by  her  continual  coming,  he  gave 
her  justice.  These  are  arguments  e  contrario.  If  persever- 
ance in  the  face  of  such  adverse  conditions  gains  its  end, 
how  much  more  will  persevering  prayer  secure  its  object 
when  directed  to  the  benevolent  Father!   These  are  sam- 


THE  UTILITY  OF  PRAYER  319 

pies  of  the  many  confident  assurances  the  Scriptures  offer 
us  regarding  the  eflficacy  of  honest  prayer. 

A  further  encouragement  to  our  faith  in  the  efficacy  of 
prayer  arises  from  the  example  of  Jesus.  Even  those  who 
refuse  assent  to  the  claim  that  he  was  the  Son  of  God 
regard  him  as  the  best  man  that  ever  lived  —  in  fact,  a 
perfect  man.  It  is  significant  that  this  perfect  man  was 
preeminently  a  man  of  prayer.  Humanity  at  its  best  prays. 
The  Son  of  Man,  whose  moral  achievements  have  never 
been  surpassed,  spent  whole  nights  in  prayer.  His  habit 
of  prayer  was  so  manifestly  helpful  that  his  disciples  came 
to  him  and  said,  "Lord,  teach  us  to  pray."  We  have  no 
record  of  their  saying,  "Lord,  teach  us  to  heal,"  or,  "Teach 
us  to  preach."  They  saw  that  his  power  to  heal,  and  to 
speak  as  never  man  spake,  sprang  from  his  sense  of  vital 
fellowship  with  the  Father,  sustained  by  prayer.  They 
asked,  therefore,  that  they  might  be  taught  to  pray. 

Jesus  left  one  prayer  so  beautiful,  so  comprehensive,  so 
satisfying  to  the  human  heart,  that  it  is  being  repeated  this 
very  day  in  more  than  three  hundred  languages  by  prayer- 
ful men.  When  the  representatives  of  all  religions  met  in  a 
parliament  at  the  World's  Fair  in  Chicago,  the  "Lord's 
Prayer"  was  by  universal  consent  adopted  as  the  form  of 
petition  for  the  opening  of  the  sessions.  Jews  and  Gentiles, 
Cretes  and  Arabians,  Buddhists  and  Christians,  Moham- 
medans and  Hindus,  all  spoke  to  the  Father  through  those 
simple  words,  as  in  a  language  to  which  they  were  born. 

Jesus,  the  author  of  this  universal  prayer,  made  the 
most  confident  promises  as  to  the  efficacy  of  prayer.  He 
saw  life  whole,  and  with  clear-eyed  intelligence  he  set  his 
seal  upon  the  noble  utility  of  prayer.  The  whole  life  of  this 
perfect  man  was  bathed  in  prayer.  He  prayed  even  when 
his  enemies  were  unjustly  putting  him  to  death.  The  dis- 
ciple cannot  do  better  than  be  as  his  Lord.  When  men 
grow  so  wise  that  they  do  not  pray,  scoffing  at  the  idea  of 


320  THE  BRIEF 

prayer  accomplishing  anything,  we  may  well  compare  their 
moral  intelligence  and  spiritual  effectiveness  with  that  of 
Jesus;  and  then  recall  the  fact  that  his  confidence  in  prayer 
never  wavered. 

Another  strong  presumption  in  favor  of  the  value  of 
prayer  arises  when  we  turn  to  the  long,  broad  lines  of  hu- 
man experience.  The  scientific  way  of  reaching  the  truth 
is  not  to  sit  down  and  reason  out  in  advance  what  ought  to 
be  the  fact,  what  is  possible  or  probable  in  this  great  world 
of  which  we  know  so  little;  the  scientific  method  is  to  go  and 
see.  Human  beings  have  always  had  the  habit  of  prayer. 
There  have  been  cities  without  walls,  without  schools,  with- 
out markets,  without  books,  without  many  things  that  we 
ordinarily  associate  with  city  life,  but  never  a  city  without 
its  places  of  prayer.  Prayer  is  the  persistent,  incurable 
habit  of  the  race. 

The  fact  that  it  is  thus  widespread  and  has  endured 
through  all  the  centuries  indicates  that  it  has  utility.  When 
we  find  a  fin  on  a  fish,  a  wing  on  a  bird,  an  "instinct"  in  an 
animal,  the  fact  that  it  is  there  indicates  that  it  is  useful  — 
it  would  not  otherwise  have  been  retained.  Useless  organs 
disappear  or  become  rudimentary.  Unless  prayer  sustains 
some  vital  relation  to  man's  well-being  it  would  not  have 
thus  endured.  The  fact  that  the  race  always  has  prayed 
and  the  fact  that  a  greater  volume  of  intelligent  prayer  is 
being  offered  in  this  twentieth  century  than  ever  before 
raise  a  strong  presumption  that  such  an  exercise  of  one's 
powers  is  rational  and  useful. 

In  the  face  of  this  persistent  habit  of  mankind,  it  is  in- 
structive to  recall  the  testimony  of  a  distinguished  evolu- 
tionist that  in  Nature  we  have  found  it  to  be  true  that 

everywhere  the  internal  adjustment  has  been  brought  about  so  as 
to  harmonize  with  some  actually  existing  external  fact.  The  eye 
was  developed  in  response  to  the  outward  existence  of  radiant 
light,  the  ear  in  response  to  the  outward  existence  of  acoustic 


THE  UTILITY  OF  PRAYER  321 

vibrations,  the  mother's  love  came  in  response  to  the  infant's 
needs.  If  the  relation  established  in  the  morning  twilight  of  man's 
existence  between  the  human  soul  and  a  world  invisible  and  im- 
material is  a  relation  of  which  only  the  subjective  term  is  real  and 
the  objective  term  is  non-existent,  then,  I  say,  it  is  something 
utterly  without  precedent  in  the  whole  history  of  creation. 

If  the  capacity  of  man  for  fellowship  with  God  through 
prayer  were  real  only  at  our  end  of  the  line  and  unreal  at 
the  other,  then  it  is  an  utter  break  in  the  whole  method  dis- 
covered in  the  ascertained  uniformities  of  Nature. 

The  lesson  of  evolution,  therefore,  is  that  through  all  these  weary 
ages  the  human  soul  has  not  been  cherishing  in  religion  a  delusive 
phantom,  but,  in  spite  of  seemingly  endless  groping  and  stumbling, 
it  has  been  rising  to  the  recognition  of  its  essential  kinship  with 
the  ever-living  God.^ 

And  what  has  been  the  broadly  ascertained  result  of 
this  widespread  and  long-continued  effort  to  realize  kinship 
with  God  through  prayer?  The  cumulative  answer  comes 
back  from  multitudes  of  praying  men  —  hearts  have  been 
renewed,  affections  purified,  wills  strengthened,  aspirations 
lifted;  great  and  gracious  answers  of  peace  have  come; 
added  security  and  confidence  have  been  enjoyed.  We 
need  not  turn  to  those  exceptional  and  surprising  "answers 
to  prayer"  sometimes  collected  into  books  of  anecdote. 
Curious  coincidences  have  sometimes  been  urged  as  foun- 
dation-stones for  confidences  in  the  efficacy  of  prayer.  For- 
tunate occurrences  have  been  overworked  in  the  supposed 
interests  of  a  conquering  faith.  In  this  consideration  I 
would  ground  my  faith  in  prayer  rather  upon  the  broad  and 
ordinary  lines,  where  there  are  uninterrupted  answers  com- 
ing back  to  men  as  they  pray.  The  spiritual  results  of  the 
habit  of  honest  prayer  are  so  well  ascertained  as  to  lend 
strong  aid  in  lifting  this  exercise  into  the  place  of  dignity 
and  the  region  of  high  confidence  where  it  belongs. 
1  John  Fiske,  Through  Nature  to  God,  pp.  189,  191. 


322  THE  BRIEF 

These  four  presumptions,  then,  taken  from  the  natural 
implications  of  our  beHef  in  God,  from  the  confident  prom- 
ises of  those  writings  which  contain  Supreme  Court  deci- 
sions and  form  the  common  law  of  spiritual  life,  from  the 
habit  and  the  teaching  of  Jesus,  and  from  long  lines  of 
human  experience,  must  have  weight  in  determining  any 
one's  attitude  toward  prayer. 

Two  objections  to  prayer  on  rational  grounds  are  made, 
—  one  from  a  scientific  and  the  other  from  a  philosophical 
point  of  view.  The  claim  is  made  that  an  answer  to  prayer 
would  involve  the  interruption  of  the  established  order; 
it  would  mean,  therefore,  a  violation  of  law.  In  the  pres- 
ence of  the  unbending  constancy  of  the  physical  system 
which  surrounds  us,  impressing  the  average  man  with  its 
moral  indifference,  prayer  seems  like  an  irrational  proceed- 
ing. It  appears  to  some  minds  as  the  act  of  a  puny  being 
urging  upon  the  Omnipotent  that  the  great  through  traflfic 
of  the  world  be  side-tracked  in  order  to  give  his  local  train 
the  right  of  way. 

The  other  objection  is  to  the  effect  that,  if  God  is  wise  and 
good.  He  will  do  what  is  best  for  us,  and  for  every  one, 
without  our  asking  —  indeed,  to  ask  Him  for  anything 
implies  a  certain  solicitude  as  to  his  appropriate  action. 
"Your  heavenly  Father  knoweth  that  ye  have  need  of  all 
these  things."  Then  why  should  we  ask?  It  is  an  imperti- 
nence in  that  it  calls  upon  Him  to  change  his  line  of  action 
in  obedience  to  our  suggestion.  All  the  lesser  questions 
which  arise  are  really  comprehended  within  these  two  fun- 
damental ones. 

In  regard  to  the  first,  that  an  answer  to  prayer  involves 
the  violation  of  law,  we  sometimes  frighten  ourselves  un- 
necessarily by  writing  the  word  "Law  '*  with  a  capital  let- 
ter, and  then  imagining  that  it  is  "a  kind  of  second-hand 
deity  of  itself,"  never  to  be  interfered  with  by  any  one  in 
heaven  or  on  earth.    All  this  is  purely  verbal.    "Natural 


THE  UTILITY  OF  PRAYER  323 

law'*  is  simply  a  phrase  to  indicate  the  regular,  orderly 
habits  of  the  Creator  who  is  above  all  and  in  all  things.  We 
have  noted  some  of  his  cosmic  habits  as  being  regular  and 
we  call  them  "laws."  But  God  is  not  bound  by  them.  He 
has  not  tied  his  own  hands  by  certain  of  his  own  habits. 
On  the  whole,  He  apparently  deems  it  best  to  observe  them 
regularly,  that  his  creatures  may  depend  upon  his  activity 
in  certain  matters  —  the  rising  of  the  sun,  the  return  of  the 
seasons,  the  growth  of  seed,  the  bodily  conditions  of  health 
and  disease  —  with  solid  certainty.  These  habits  are  wise 
and  good  or  He  would  not  have  adopted  them.  But  to 
fancy  that  He  will  not  and  cannot  vary  his  action;  to  im- 
agine, for  instance,  that  He  could  not  reinforce  and  quicken 
that  energy  which  we  lightly  call  "the  healing  process  of 
nature"  in  the  case  of  the  sick;  to  deny  his  power  to  help  by 
some  unusual  movement  of  his  silent  energy  for  the  relief 
of  one  of  his  children  in  an  emergency,  would  be  to  make 
Him  less  than  God. 

Praying  people  are  sometimes  unnecessarily  frightened 
by  a  pretentious  phrase — "the  uniformity  of  nature." 
There  is  such  a  thing,  but  no  one  knows  enough  to  define 
it.  No  one  would  undertake  to  name  all  "the  laws  of  na- 
ture." The  interrelation  of  spiritual  forces  with  physical 
forces  is  but  dimly  understood.  We  are  feeling  our  way 
toward  an  understanding  of  the  total  "uniformity  of  na- 
ture "  which  includes  all  such  interaction,  but  that  perfect 
knowledge  is  at  present  too  high  for  us;  we  cannot  attain 
imto  it.  It  is  therefore  dogmatic  assumption  to  claim  that 
the  few  things  we  have  learned  about  "natural  law"  en- 
tirely block  the  way  and  make  it  impossible  for  God  to 
answer  the  prayers  of  his  children. 

These  scientific  laws,  which  are  often  held  up  as  bogies  to 
frighten  the  children  of  the  Father  out  of  their  confidence 
in  Him,  are  simply  the  best  we  know  thus  far  about  some 
manifestations  of  an  Eternal  Energy.   The  truly  scientific 


324  THE  BRIEF 

man  does  not  undertake  to  say  what  may  or  may  not  be 
possible  in  realms  where  his  knowledge  is  confessedly  in- 
complete. He  does  not  deny  the  possibility  of  miracles,  or 
the  possibility  of  answers  to  prayer  —  it  is  purely  a  matter 
of  evidence  as  to  what  does  actually  occur. 

This  must  be  so  in  the  nature  of  the  case.  We  have  been 
surprised  so  many  times  that  possibly  we  may  be  surprised 
again.  There  are  more  things  in  this  world  than  men  have 
dreamed  of,  and  more  things  wrought  by  prayer  than  hasty 
philosophies  allow.  Men  were  saying  fifty  years  ago  that 
it  was  scientifically  impossible  to  run  a  heavy  street-car 
through  the  streets,  loaded  with  a  hundred  people,  heated, 
lighted,  and  moved  by  a  current  of  electricity  from  a  single 
wire.  They  said  it  was  scientifically  impossible  to  talk  from 
New  York  to  Chicago  and  have  the  familiar  tones  of  a 
friend's  voice  recognized,  or  to  transmit  by  electricity  a 
signature  preserving  its  well-known  individuality.  They 
said  it  was  scientifically  impossible  to  telegraph  with  ac- 
curacy for  hundreds  of  miles  across  the  open  sea  without 
wires.  They  said  that  the  present  phenomena  of  hypno- 
tism and  healing  by  suggestion,  recognized  by  scientific 
men  as  beyond  a  peradventure,  were  scientifically  impossi- 
ble. In  all  these  and  in  many  other  cases  they  were  mis- 
taken in  their  presuppositions.  We  are  constantly  learning 
more  about  the  subtle,  invisible  forces  in  this  world.  We 
are  not  prepared  offhand  to  decide  upon  what  is  or  what  is 
not  impossible,  or  to  pass  upon  the  claims  that  many  of  the 
earth's  wisest  and  best  men  have  made  regarding  prayer, 
without  painstaking  investigation. 

When  I  begin  to  pray  for  my  own  physical  health,  for  the 
recovery  of  some  sick  friend,  for  success  in  my  undertak- 
ings, for  moral  peace  and  strength,  or  for  any  legitimate 
object,  I  set  in  motion  new  forces.  They  begin  to  act  not  in 
violation  of  law,  but  in  accordance  with  a  higher  law;  they 
introduce  a  new  element  to  be  reckoned  with.    The  man 


THE  UTILITY  OF  PRAYER  325 

drawing  water  out  of  a  well,  where  the  force  of  gravitation 
would  cause  the  water  to  remain,  is  not  violating  a  univer- 
sal law,  he  is  bringing  to  bear  another  force  which  alters 
what  would  have  been  the  natural  position  of  the  water. 
Human  energy  and  volition  are  constantly  playing  into  the 
great  natural  order,  realizing  purposes  which  would  not 
have  been  realized  if  the  system  had  been  left  to  itself.  The 
man  who  prays  puts  in  operation  a  kind  of  energy,  invisible 
as  electricity  or  as  the  atmospheric  waves  which  make 
possible  wireless  telegraphy,  or  as  the  force  that  acts  in 
the  influence  of  thought  upon  digestion,  but  just  as  real. 
Prayer  is  the  act  of  a  man  bringing  up  his  need  by  a  moral 
act  and  linking  it  with  the  offered  help  of  God.  This  brings 
to  bear  upon  the  situation  a  new  force. 

When  we  thus  stand  amazed,  on  the  one  hand,  at  the 
results  accomplished  by  certain  invisible  forces  with  which 
we  are  slowly  becoming  acquainted,  and  when  we  turn  on 
the  other  hand  to  the  confident  words  of  a  Master  in  the 
kingdom  of  the  spirit,  we  are  not  disturbed  in  our  faith  by 
these  would-be  scientific  objections  as  to  the  efficacy  of 
prayer. 

A  man  standing  in  his  noblest  attitude  before  God,  turn- 
ing the  whole  of  his  inner  life  Godward,  bending  the  full 
energy  of  will  and  affection  toward  the  attainment  of  some 
holy  end,  is  wielding  a  force  not  easily  estimated.  As  Presi- 
dent Eliot  of  Harvard  said,  "Prayer  is  the  transcendant 
effort  of  human  intelligence."  Jesus  did  not  use  scientific 
language;  he  used  popular  language,  but  he  made  this  point 
clear  —  for  moral  ends,  for  the  purpose  of  rich  spiritual 
development,  God  has  within  his  keeping  certain  great  aids 
which  are  only  obtainable  by  that  noble  exercise  of  the 
highest  faculties  which  we  call  prayer. 

We  are  in  no  wise  disturbed  by  the  fact  that  we  have  not 
reduced  the  possibilities  of  this  prayer  force,  acting  within 
the  larger  uniformities  of  God,  to  an  exact  science.    We 


326  THE  BRIEF 

have  not  reduced  to  an  exact  science  the  influence  of  a 
mother's  love  upon  her  children,  or  the  effect  of  a  good 
name  upon  one's  prospect  of  success,  or  the  physical  bene- 
fits of  a  cheerful  habit  of  mind.  We  have  not  reduced  to 
an  exact  science  the  forces  at  work  in  a  wheat-field  —  they 
are  too  intricate  for  our  present  knowledge.  Perfect  intelli- 
gence would  know  how  many  grains  in  each  bushel  would 
sprout  and  grow,  but  no  man  can  tell.  Perfect  intelligence 
could  indicate  why  certain  prayers  are  answered  and  why 
some  are  not,  but  such  complete  understanding  of  all  the 
forces  to  be  considered  is  not  within  our  reach.  But  even 
though  in  all  these  fields  our  knowledge  stops  far  short  of 
completeness,  enough  is  known  to  encourage  the  effort  — 
mothers  love  their  children;  a  right-minded  man  guards  his 
good  name;  sensible  people  promote  health  by  good  cheer. 
Farmers  sow  in  the  confidence  that  they  will  reap;  and 
thoughtful  people  keep  on  praying,  assured  by  the  promises 
of  Christ  and  by  an  ever-increasing  volume  of  religious 
experience,  that  prayer  works  its  own  beneficent  results. 

The  other  objection  raises  the  question  as  to  why  a  wise 
and  good  God  should  withhold  action  until  we  ask.  How 
can  we  indeed  ask  Him  to  vary  what  must  already  have 
been  perfect  action ! 

Such  a  priori  objections  might  be  carried  into  other  fields 
as  well.  Why  does  a  good  God  withhold  from  his  children 
a  wheat  harvest  until  they  have  ploughed  and  sowed  and 
reaped  ?  Why  does  God  hide  away  treasures  of  gold  in  the 
hills,  locking  it  up  in  quartz,  scattering  its  grains  through 
the  clay  and  sand,  covering  it  with  mountains?  He  does  it 
because  toil  is  good  for  men.  It  would  have  been  a  doubt- 
ful kindness  to  lay  these  values  in  heaps  ready  to  man's 
hand.  All  things  have  been  done  and  are  being  done  now 
for  the  moral  education  of  the  race.  In  all  that  God  does, 
whether  in  the  renewal  of  the  spiritual  life,  or  in  healing 
the  body,  or  in  ordering  the  seasons,  He  has  in  mind  the 


THE  UTILITY  OF  PRAYER  327 

moral  improvement  of  his  people.  Benefits  are  conditioned 
upon  appropriate  effort  because  of  the  moral  ends  which 
are  thereby  served.  Blessings  wait  upon  our  asking,  be- 
cause men  nowhere  receive  more  effective  moral  education 
than  in  waiting  upon  God  in  prayer.  The  soul  never  stands 
in  such  dignity  of  privilege,  never  asserts  its  richest  pre- 
rogative so  fully  as  when,  standing  face  to  face  with  its 
Maker,  it  talks  with  Him  of  the  things  that  belong  to  its 
peace. 

This  is  a  strange  objection  to  prayer!  Why  does  a  wise 
and  good  God,  knowing  our  needs,  require  us  to  come  and 
ask  Him  before  He  grants  his  help  ?  That  is  to  say,  why 
does  He  not  proceed  to  do  what  is  best,  leaving  us  free  to 
spend  our  time  with  some  one  else,  instead  of  spending  it 
with  Him.? 

The  objection  vanishes  the  moment  we  remember  that 
all  things  are  ordered  with  reference  to  strengthening  the 
moral  bond  between  the  Father  and  his  children.  If  any 
one  of  you  is  a  father,  why  do  you  love  to  have  your  chil- 
dren come  to  you,  talk  over  their  affairs  with  you,  ask  you 
for  what  they  want,  sometimes  wisely  and  sometimes  un- 
wisely? You  know  that  their  coming  and  the  consequent 
reinforcement  of  the  bond  between  you  and  them  is  not 
only  a  joy  to  you,  it  is  for  the  lasting  advantage  of  the  chil- 
dren. Thus  a  wise  and  good  God,  for  the  same  sacred  ends, 
withholds  certain  blessings  until  his  children  obediently 
and  lovingly  come  to  Him  in  prayer. 

It  is  an  unspeakable  loss  for  children  never  to  have 
known  the  companionship  of  the  earthly  father  and  mother. 
It  is  a  greater  loss  for  a  man  never  to  know,  through  heart 
to  heart  commxmion,  the  companionship  of  a  heavenly 
Father.  Therefore,  because  of  the  incompleteness  of  our 
moral  nurture  without  this  experience,  God  has  made  cer- 
tain benefits,  temporal  as  well  as  spiritual,  conditional  upon 
our  coming  to  Him  in  prayer.  He  has  ordained  this  method 


328  THE  BRIEF 

of  securing  blessings  untold,  that  we  may  be  attracted  and 
encouraged  to  know  Him  whom  to  know  is  life  eternal. 

Prayer  will  bear  the  scientific  and  the  philosophic  test, 
and  its  realities  can  be  stated  in  the  language  of  the  schools. 
Yet  the  simple,  familiar  language  Jesus  used  puts  it  more 
clearly  and  effectively.  As  a  boy  you  did  not  stand  outside 
your  father's  door  when  you  were  conscious  of  some  need 
which  he  could  supply.  You  did  not  tarry,  reasoning,  in 
metaphysical  fashion,  that  if  your  father  were  wise  and 
good  he  would  do  what  was  best;  or  that  any  suggested 
deviation  would  be  a  violation  of  the  family  order  which 
must  be  right  since  he  established  it.  You  went  in  and 
asked.  It  was  better  for  you  to  ask,  even  though  your  re- 
quests lacked  wisdom.  The  eight-year-old  boy  who  asked 
for  a  shotgun  did  not  get  it,  but  he  received  something 
better  than  a  shotgun  through  that  hour  of  companionship 
with  his  father.  Except  ye  become  as  little  children  in  your 
method  of  procedure,  ye  shall  in  no  wise  enter  into  the 
deeper  meaning  of  prayer. 

Practical  men  have  sometimes  turned  away  from  prayer 
as  a  thing  well  enough  for  women  and  children,  but  having 
no  attraction  for  clear-headed  men  of  affairs.  But  they  in 
the  stress  of  this  workaday  world,  feel  the  need  of  some- 
thing to  lift  their  lives  to  a  higher  plane  of  thought  and  ac- 
tion. They  need  to  know  Him  whom  the  wisest  of  men 
called  "the  Father."  If  they  would  go  in,  not  troubling 
themselves  about  the  particular  range  of  their  requests, 
not  embarrassing  themselves  by  scientific  and  metaphysical 
questions  that  once  seemed  to  block  the  way,  but  becoming 
as  little  children  speaking  to  their  father,  the  philosophy 
of  prayer  would  be  cleared  of  its  difficulties  by  blessed  per- 
sonal experience. 

Two  things  ought  ever  to  be  borne  in  mind:  the  chief 
object  of  prayer  is  not  to  get  something.  The  claim  has 
been  made  that  if  we  have  faith  we  can  get  anything  wc 


THE  UTILITY  OF  PRAYER  329 

want.  Jesus  had  faith.  He  prayed,  "Let  this  cup  pass  from 
me.'*  It  did  not  pass.  He  drank  it  next  day  upon  the  cross. 
But  he  continued  in  prayer  until  he  could  say,  "  If  I  must 
drink  it,  not  my  will,  but  thine,  be  done."  The  purpose  of 
prayer  is  not  to  enable  a  man  to  stand  before  God  and  say, 
"Not  as  thou  wilt,  but  as  I  will."  Its  deeper  purpose  is  to 
bring  him  into  that  harmony  with  God,  where  he  will  say, 
"Thy  will  be  done." 

That  of  itself  is  a  mighty  answer.  What  better  thing 
could  come  than  that  he  should  be  made  able  to  say  to  the 
Perfect  One,  "Thy  will  be  done"?  This  would  not  mean 
mere  passive  acquiescence  in  the  inevitable.  It  would  imply 
conscious  self-devotement  to  the  will  of  God.  Jesus  prayed 
until  he  could  say,  "Thy  will  be  done."  He  then  added 
"Rise,  let  us  be  going,"  as  he  went  forth  to  do  the  Father's 
will.  The  prayer  that  brings  us  into  voluntary  harmony 
with  the  divine  purpose  has  in  that  very  fact  achieved  a 
gracious  answer. 

We  are  not  intent  upon  having  our  own  way  in  every 
situation,  nor  do  we  suppose  that  such  a  result  would  be  for 
our  highest  good.  God  has  not  resigned  the  management 
of  the  world  into  the  hands  of  his  fumbling  children, 
whether  they  stand  or  kneel.  It  would  be  a  strange  family 
where  the  will  of  the  children  ruled  the  home.  Many  a 
prayer  fails  to  bring  the  specific  thing  sought.  "The 
prayer  of  faith  shall  save  the  sick,"  yet  the  writer  knew 
there  would  come  a  last  sickness  when  each  would  die,  even 
though  prayer  for  his  recovery  might  be  offered.  "The 
effectual  fervent  prayer  of  a  righteous  man  availeth  much** 
—  much,  but  not  everything  which  imperfect  knowledge 
might  ask. 

The  universe  is  not  a  democracy  where  the  people  rule, 
even  though  their  wishes  be  expressed  in  prayer.  It  is  a 
kingdom  where  God  rules  in  a  fatherly  way  over  the  lives 
of  his  growing  but  immature  children.  It  would  be  a  calam- 


330  THE  BRIEF 

ity  if  every  ignorant  prayer  were  answered;  if  the  world 
were  wholly  managed  by  our  wishes  rather  than  by  his 
higher  wisdom.  The  chief  purpose  of  prayer  throughout  is 
not  that  of  getting  our  will  done,  but  the  enjoyment  of  that 
richer  privilege  of  being  with  the  Father,  and  of  being 
brought  into  active  harmony  with  his  holy  will. 

Jesus  looked  ahead  to  the  time  when  the  clamorous,  in- 
sistent type  of  prayer,  intent  upon  its  own  ends,  would 
pass.  He  reminded  us  that  men  are  not  heard  for  their 
much  speaking.  He  said,  "In  that  day  ye  shall  ask  me 
nothing."  The  petitionary  element  would  be  overshad- 
owed by  the  sense  of  holy  companionship.  When  you  are 
praying  you  are  in  the  highest  company  possible.  The  fact 
that  you  are  there  in  conscious  fellowship  with  the  heav- 
enly Father  is  a  rich  reward  for  your  ^ct.  "Hours  are 
well  spent  when  they  are  spent  with  Him." 

When  you  fail  of  obtaining  some  specific  request  it  does 
not  destroy  your  faith  in  prayer,  nor  incline  you  to  cease. 
The  eight-year-old  boy  who  failed  of  the  shotgun  did  not 
stop  associating  with  his  father.  The  parent  who  in  plead- 
ing for  a  child's  life  looked  up  defiantly,  silently  vowing 
that  if  the  child  died  she  would  never  pray  again,  thought 
better  of  it;  she  saw  that  such  an  attitude  was  not  in  the 
spirit  of  prayer.  She  gratefully  recalled  the  fact  that  a 
higher  wisdom  controls  all  things,  and  that,  whatever  the 
issue,  she  enjoyed  an  unspeakable  advantage  in  that  she 
was  brought  by  her  prayer  into  closer  fellowship  with  the 
Father. 

The  other  consideration  is  that  prayer  is  not  a  mere  in- 
tellectual exercise  or  an  effort  of  the  will;  prayer  is  ethical 
and  must  be  the  act  of  the  entire  nature.  It  is  the  "effec- 
tual fervent  prayer"  of  a  righteous  man  that  "availeth 
much."  The  assurance  is  given  to  "the  rightened  man  who 
is  in  line  with  the  laws  under  which  he  makes  his  experi- 
ments." 


THE  UTILITY  OF  PRAYER  331 

"When  ye  pray,  say,  *  Our  Father.'  "  We  ask  as  his  chil- 
dren. We  make  our  requests  with  fihal  freedom  and  con- 
fidence, but  they  proceed  from  a  fihal  nature.  We  stand  in 
reverent,  obedient  trust  before  Him  in  uttering  even  the 
first  two  words  of  genuine  prayer.  We  must  find  our  places 
in  his  house,  at  his  table,  in  his  service,  as  obedient  children, 
before  the  total  nature  can  look  up  and  say,  "Our  Father.'* 
Even  the  sinful  man,  in  order  to  pray  for  his  own  forgive- 
ness, must  come  in  penitence,  cherishing  that  new  purpose 
which  enables  him  to  say,  "Father,  forgive." 

Jesus  added  further,  "If  ye  shall  ask  anything  in  my 
name,  I  will  do  it."  His  name  was  to  be  used,  not  as  a  for- 
mal endorsement,  or  a  graceful  conclusion  of  the  request. 
"The  thought  is  not  that  of  using  the  name  of  Jesus  as  a 
password  or  a  talisman,  but  of  entering  into  his  person  and 
appropriating  his  will,  so  that  when  we  pray  it  shall  be  as 
though  Jesus  himself  stood  in  God's  presence  and  made 
intercession."  ^  To  pray  in  the  name  of  Jesus  is  to  pray  in 
his  spirit,  and  to  pray  for  the  things  he  would  pray  for. 

And  what  did  Jesus  pray  for  in  his  recorded  prayers? 
Not  for  wealth,  ease,  fame,  personal  pleasure,  or  even  suc- 
cess, except  along  moral  lines.  The  Lord's  Prayer  contains 
but  one  petition  for  material  blessing,  and  that  modestly 
limits  itself  to  asking  one  day's  bread  for  immediate  need. 
The  other  five  petitions  are  for  the  hallowing  of  God's 
name,  for  the  coming  of  his  kingdom,  for  the  doing  of  his 
will  on  earth,  for  forgiveness,  and  for  deliverance  from  evil. 
This  furnishes  us  what  might  be  called  the  "norm"  of 
appropriate  peitition.  The  model  prayer  moves  chiefly  in 
the  realm  of  moral  things,  and  all  prayer  offered  in  the  spirit 
of  Christ  will  lay  the  emphasis  there. 

We  have  Scriptural  warrant  for  praying  in  regard  to  in- 
terests other  than  those  directly  spiritual,  but  always  with 
an  eye  to  the  bearing  of  those  benefits  on  the  coming  of  his 
*  A.  J.  Gordon,  The  Ministry  of  the  Spirit,  p.  147. 


332  THE  BRIEF 

kingdom  in  our  hearts  and  in  the  world.  The  material  ad- 
vantages sought  are  subordinate  to  the  spiritual  benefits 
which  stand  as  the  supreme  ends  to  be  gained  in  prayer. 
Pray  for  health,  for  intelligence,  for  opportunities,  for  the 
success  of  legitimate  plans,  but  always  that  in  and  through 
these  you  may  the  more  perfectly  glorify  God  as  a  useful 
servant  of  his  holy  will!  To  pray  with  this  subordination  of 
private  interest  to  the  larger  demands  of  the  coming  king- 
dom is  to  pray  in  the  name  of  Jesus  Christ.  This  indicates 
that  prayer  must  be  ethical,  and  that  it  can  only  be  effec- 
tively offered  by  those  who  are  bringing  their  lives  by  per- 
sonal consecration  into  right  relations  with  the  King  of  the 
kingdom.  When  it  is  thus  offered,  the  hand  of  the  petitioner 
is  knocking  at  a  door  which  opens  on  the  treasure-house  of 
the  Unseen  —  and  he  may  do  it  in  the  confident  assurance 
that  "to  him  that  knocketh,  it  shall  be  opened." 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 
BERKELEY 

Return  to  desk  from  which  borrowed. 
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13Jul5lLl) 
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NOV  5     19.0   REC'D  LD 

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